Delhi District Court
Vijay Kr. Jaggi vs Jitendra Sharma on 7 May, 2025
1IN THE COURT OF SH. ANSHUL MEHTA,
JUDICIAL MAGISTRATE FIRST CLASS, (NI ACT)-08
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No. 241/2016
Vijay Kumar Jaggi ............Complainant
Versus
Jitender Sharma .............Accused
JUDGMENT
(1) Name of the complainant, Vijay Kumar Jaggi, R/o A-283, parentage and address New Friends Colony, New Delhi-110065.
(2) Name of the accused, Jitender Sharma R/o D-906,
parentage and address IInd Floor, New Friends
Colony, New Delhi-110065.
(3) Offence complained of or U/s 138 NI Act
proved
(4) Plea of accused Pleaded not guilty
(5) Date of institution of case 09.08.2012
(6) Date of conclusion of 23.10.2024
arguments
(7) Date of Final Order 07.05.2025
(8) Final Order Convicted u/s 138 NI Act
JUDGMENT
Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 1 of 18
1. Vide this judgment I shall dispose of the present complaint case filed by the complainant under Section 200 Cr.P.C read with Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ' NI Act').
2. Brief facts relevant for the decision of the case are as under:-
As per the complainant, the complainant was known to the accused; that the complainant upon repeated requests of the accused agreed to purchase a farm house bearing No.6, situated at Noida adjoining sector -150, on Noida - Greater Noida Expressway, owned by the accused and consequently gave a sum of Rs. 15 lacs to the accused; that thereafter on various occasions complainant repeatedly asked the accused to provide for the receipt of the said amount but on each occasion the accused asked him to trust the accused and further assured the complainant that the accused is in the process of getting the requisite permissions from the Noida Authority to get the property transferred in the name of the complainant; That during the month of January, 2012 when the complainant asked the accused to provide for the receipt or to provide him with the papers of the property, the accused further requested him to wait till February, 2012; That in the second week of February, 2012 the complainant again approached the accused and asked the accused to either provide him with the papers of the property or to give the money back to the complainant, the accused told the complainant that if the complainant is not ready to wait for some more time then the complainant should take his money back; That left with no other option, the complainant asked the accused to refund his money back as he had already waited for long, and consequently the accused Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 2 of 18 issued him a cheque bearing No.000022, dated 27.02.2012 for sum of Rs 12,50,000/- (Rupees Twelve Lacs and Fifty Thousand Only) drawn upon Kotak Mahindra Bank, M-57, Lajpat Nagar -II, New Delhi - 110024 as part payment of the debt owed by the accused and it was further assured by the accused that the cheque will be duly honoured upon presentation and further that the remaining amount would be paid to the complainant in some days; That the complainant deposited the above said cheque bearing No. 000022, dated 27.02.2012 for sum of Rs. 12,50,000/- (Rupees Twelve Lacs and Fifty housand Only) drawn upon Kotak Mahindra Bank, with his Bankers i.e. Standard Chartered Bank, Dwarka, New Delhi, for its realization but he found the same returned unpaid from the accused bankers due to the reasons "REFER TO DRAWER"
vide return memo dated 02.03.2012 issued by the bankers of the Complainant; That the complainant intimated the same to the accused and the accused again assured the complainant that he should again present the said cheque after two months as the accused was facing a financial crunch and that this time the above said cheque would be duly encashed/honoured; That upon the assurances given by the accused, the complainant waited till May, 2012 and again presented the said cheque bearing No.000022, dated 27.02.2012 for sum of Rs. 12,50,000/- (Rupees Twelve Lacs and Fifty Thousand Only) drawn upon Kotak Mahindra Bank, with his Bankers i.e. Standard Chartered Bank, Dwarka Branch, New Delhi, for realization on 24.05.2012, but the complainant found the same returned unpaid again from the bankers of accused due to the reasons "DRAWERS SIGNATURES INCOMPLETE/ILLEGIBLE"
which was intimated to the complainant by his banker vide their return memo dated 26.05.2012; That thereafter, the complainant sent a legal Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 3 of 18 notice dated 24.06.2012 upon the accused which was duly received by the accused; that the accused failed to pay the cheque amount within stipulated period of 15 days as provided under the law and hence committed an offence under section 138 of NI Act.
3. Proceedings before the court:
Upon primafacie consideration of the pre-summoning evidence, cognizance of offence under section 138 NI Act was taken and the accused was summoned vide order dated 24.02.2014. Thereafter a separate notice explaining the accusation was put to the accused under section 251 of the Code of Criminal Procedure, 1973 to which the accused pleaded not guilty and claimed trial. At this stage, the accused stated in his defence that he owes only Rs. 50,000/- to the complainant and not the cheque amount and that the complainant has committed forgery. He further stated that he is still willing to pay the said amount.
4. Thereafter, vide order dated 17.09.2016, an application u/s 145 (2) NI Act was allowed and the accused was granted an opportunity to cross examine the complainant and the matter was listed for CE. At the stage of CE, the complainant adopted his pre- summoning evidence and he was duly cross-examined and discharged. Thereafter vide order dated 19.07.2019, CE was closed and on 25.07.2019, accused was examined u/s 313 Cr.P.C, wherein accused chose to lead DE. At the stage of DE, accused examined himself as DW1 and one Akhlaq Alvi was examined in chief and partly cross-examined as DW2. Since the cross-examination of DW2 was not completed on account of his regular absence on the various dates of Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 4 of 18 hearing, his testimony cannot be read in evidence. Further, accused also examined one Poonam Saini, Handwriting and Fingerprint expert as DW3. Both the DW1 and DW3 were duly cross-examined and discharged. Final arguments were heard and trial was concluded.
5. I have heard counsels on behalf of both the sides, perused the record as well as relevant provisions of law.
6. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Section 138 Negotiable Instrument Act provides as under:
"Section 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 provisions 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 Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 5 of 18 both:"
7. Provided that nothing contained in this section shall apply unless (A) 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;
(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.
Explanation -- for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
08. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled:
I. drawing of the cheque by a person on an account maintained by him with a banker;Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 6 of 18
II. The cheque was issued for payment to another person for discharge in whole/part any debt or liability;
III. 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. RBI in its notification DBOD.AML BC.No.47/14.01.001/2011-12 has reduced the aforesaid period from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque;
V. Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount;
VI. Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Being cumulative, 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 under Section 138 of the N I Act.
09. In the present case, the complainant has filed on record the original cheque Ex. CW1/1. The accused has no where denied his Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 7 of 18 signatures on the cheque in question. The only defence of the accused is that he had given a cheque of Rs. 50,000/- and not of Rs. 12,50,000/- as alleged by the complainant. Further the complainant in his cross- examination has admitted his signatures on the cheque statement of accused u/s 313 Cr.P.C expressly admitted admitted his signatures on the cheque. It is not disputed that the cheque in question is not drawn on an account maintained by accused. Moreover, the cheque Ex. CW1/1 also bears the name of the accused in printed form, as such, the fact that the accused is the drawer of the cheque is undisputed. Therefore, ingredient number (I) stands fulfilled in the present case.
10. Now, it is essential that the cheque in question be presented within a period of three months from the date on which they are drawn and the same be returned as unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque. In the present case, the date of the cheque in question Ex. CW1/1 is 27.02.2012. The cheque Ex. CW1/1 was returned unpaid vide returning memo Ex. CW1/2 dated 26.05.2012. Therefore, it is apparent that the cheque was presented within three months. Further the cheque was returned unpaid due the reason "Drawer's sign incomplete/illegible". It is argued by the Ld. Counsel for the accused that the cheque in question was not dishonored because of any of the two reasons as stipulated u/s 138 NI Act, however, In M/s Laxmi Dyechem Vs. State of Gujrat 2012 (13) SCC 375, Hon'ble Supreme Court of India held:-
"The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 8 of 18 ............. is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."
Therefore, in view of the above, ingredient number (III) & (IV) also stand fulfilled in this case.
11. The legal notice Ex. CW1/3 was dispatched on 24.06.2012 i.e. within 30 days of the knowledge of return unpaid of the cheque in question. The fact that the legal demand notice has made a clear and unambiguous demand for payment of the cheque in question is not disputed. The accused stated in his statement u/s 313 Cr.P.C that he does not remember if he received any legal notice. The accused has nowhere during the whole trial or even at the time of notice or his examination in chief as DW1 stated that he did not received the legal demand notice or that legal demand notice does not bear his correct address at that time. Further the counsel for the accused nowhere suggested to the complainant during his cross examination that legal demand notice was not sent at the then correct address of the accused or the accused did not received the legal demand notice. Therefore, in view of the above, it is hereby deemed admitted that the accused received the legal demand notice Ex. CW1/3. Therefore mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. Hence, The condition number (V) also stands fulfilled.
12. With regard to condition no. (VI), it is not in dispute that the Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 9 of 18 accused has not made the payment of the cheque amount within 15 days of receipt of the legal demand notice, therefore, condition number (VI) also stands fulfilled in the present case.
13. With regard to the condition number (II), the NI Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to issuance of cheque for consideration, as contained in Section 118 (a) and, secondly, a presumption under Section 139, that the holder of cheque received the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010)11 SCC 441 referred]:
I. Once the execution of cheque is admitted, Section 139 of the Act mandates that a presumption be drawn that the cheque in question was for the discharge of any debt or other liability.
II. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 10 of 18
III. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
IV. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
V. It is not necessary for the accused to come in the witness box to support his defence.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summaries the general principles in the following way:Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 11 of 18
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
Standard of proof: The standard of proof required to rebut the presumption under Section 139 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 other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the note/cheque 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 prove the nonexistence of the 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 a bare denial of Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 12 of 18 passing of 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 the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
14. As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, or by leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand.
15. In the light of above discussion, considering that the accused has admitted issuance of the cheque to the complainant as well as his signatures on the cheque in question, now it is to be seen whether the accused has been able to rebut the presumption against him i.e. whether the accused is able to raise a probable defence which Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 13 of 18 creates doubts about the existence of a legally enforceable debt?
16. It is alleged by the complainant that the total amount due was more than the cheque amount of Rs. 12,50,000/-. After admitting the issuance of the cheque as well as his signatures on the same, the accused is only disputing the amount on the cheque in question. As per the defence taken by the accused, the cheque in question given by him to the complainant was for Rs. 50,000/- and not Rs. 12,50,000/-, as alleged by the complainant.
Upon perusal of the cross-examination of CW1 done by the counsel for the accused, examination of the accused u/s 313 Cr.P.C and the examination of the accused as DW1, it is revealed that, as per the accused, the amount of Rs. 50,000/- was given by the complainant to him towards brokerage charges for a property deal with one Rajni Sood and since the said deal could not be materialized, the accused returned the brokerage charges of Rs. 50,000/- to the complainant by way of the present cheque in question. Further, in furtherance of his defence, it is alleged by the accused that the complainant forged the cheque in question by adding digits '12' before '50,000' in the amount column, thereby making the cheque of Rs. 12,50,000/- falsely.
Therefore, the only question before this court is whether the cheque in question given by the accused was for Rs. 12,50,000/- or Rs. 50,000/-?
Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 14 of 18As per CW1/complainant, he paid Rs. 15,00,000/- to the accused for buying a property owned by the accused bearing No. 6, situated at Noida adjoining sector - 150, Noida, Greater Noida Expressway. Further it is submitted that upon failure of the accused to transfer the property in the name of the complainant, complainant asked the accused to refund his money and the accused gave the cheque in question for Rs. 12,50,000/- towards part payment of the due amount of Rs. 15,00,000/-.
As per the testimony of the accused as DW1, he filled the amount of Rs. 50,000/- in figures on the cheque in question and that he did not fill the amount in words on the cheque in question. First of all, this conduct of the accused raises serious doubt on the defence taken by the accused as the court could not comprehend any reason for not filling the amount in words once one has already filled the amount in figures in a cheque.
Further, upon bare perusal of the original cheque CW1/1, specifically the column where amount in figures is filled, if the defence of the accused is considered, the space between 'Rs.' and the amount of Rs. 50,000/- must not have been as much as it is in cheque Ex. CW1/1 so as to leave as much gap in between to put '12' before 50,000'. This further flattens the defence of the accused.
Further in order to substantiate his claim of forgery on the cheque Ex. CW1/1, the accused has examined Ms. Poonam Saini, Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 15 of 18 Hand Writing and Finger Print Expert as DW3 who upon examination of photocopy of the cheque Ex. CW1/1 came to the conclusion that '12' has been subsequently added. Further she could not examined the age of the ink as she was not provided the original cheque and also stated that the possibility of superimposing upon the photocopy before giving the same for her examination cannot be ruled out. The Hon'ble High Court of Delhi in Narender Kumar v. The management of Messers M/S Manan Chand Ramji Das W.P (C) 12520/2005, relied upon the judgment delivered by the Hon'ble High Court of Madhya Pradesh in Abhay Jain vs. State of MP reported as 2018 SCC OnLine MP 1839 wherein following was observed:-
"29. The expert should form opinion on the basis of study of original document. The reason being that the pressure points are analyzed by the hand writing expert for which original are required. In the absence of original documents, the analysis of a questioned document is limited to the features that survive the copying process. This is like to identify a basics are there, but details are missing What we call the "three-dimensionality' of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly difficult to verify."
In view of the above, the court is of the opinion that this attempt of the accused is also not enough to discharge his burden of proof on the basis of preponderance of probability as the expert DW3 gave her opinion on the basis of two dimensional document and not on the basis of three dimensional document.
Further, the counsel for the accused has himself admitted while he was cross-examining the complainant/CW1 on 19.07.2019, at page No. Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 16 of 18 3 of the cross-examination of the complainant, that the amount on the cheque in question, in words as well as in figures, was already filled in. Such an admission came by way of a suggestion given by the Ld. Counsel for the accused, in reply to which, CW1 deposed "it is correct that the amount in the cheque in question (in words as well as in figure) was already filled in. This is in contradiction to what DW1/accused deposed qua the filling of amount in words. Also if the amount in words is also filled by the accused, then there is no doubt that the cheque in question was for 12,50,000/- and not for 50,000/-.
Further, it appears that the accused is not even aware whether the amount of Rs. 50,000/-, which as per him, was due to be paid by him to the complainant, has been paid by him to the complainant or not. The accused at the stage of notice u/s 251 Cr.P.C stated that he owes an amount of Rs. 50,000/- to the complainant, however, in his statement u/s 313 Cr.P.C, accused stated that he has already paid amount of Rs. 50,000/- after two months of giving him the cheque in question.
Lastly, the conduct of the accused of not filing any complaint against the complainant for the alleged forgery raises further doubt on the defence of the accused. Further, there should be some credible material or circumstance on record to show that the defence taken by the accused is a probable one which is not available in the present case.
Conclusion:
In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered view that accused Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 17 of 18 Jitender Sharma is guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, accused is hereby convicted under Section 138 of Negotiable Instruments Act, 1881.
Let the convict be heard on quantum of sentence. Copy of Judgment be supplied to the convict free of cost.
ANNOUNCED IN THE OPEN COURT TODAY On 07.05.2025 (ANSHUL MEHTA) Principal Magistrate JJB-III/Delhi/07.05.2025 Earlier JUDICIAL MAGISTRATE FIRST CLASS -08 (NI Act) SOUTH WEST DISTRICT, DWARKA NEW DELHI Ct. Case No. 241/2016 Vijay Kr. Jaggi Vs. Jitendra Sharma Page 18 of 18