Delhi District Court
Madan Lal Kalkal vs Rajesh Kumar on 24 March, 2025
Madan Lal Kalkal vs. Rajesh Kumar
1/15
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, (NI
ACT), DIGITAL COURT-01, SHAHDARA, KKD
NEW DELHI
Presided over by- Ms. ASHIMA LAKHANPALL, DJS
DLSH020006172023
In the matter of :-
Sh. Madan Lal Kalkal
s/o Late Tej Ram
R/o A-127-C, Kondli,
Delhi-110096
.... Complainant
VS.
Rajesh Kumar
S/o Late Sh. Shriram
R/o C-167/5, Mulla Colony, Gharoli Ext.,
Delhi-110096.
.... Accused
1. Name of Complainant : Madan Lal Kalkal
2. Name of Accused : Rajesh Kumar
Section 138, Negotiable
3. Offence complained of or proved :
Instruments Act, 1881
4. Plea of Accused : Not Guilty
5. Date of Filing : 19.01.2023
6. Date of Reserving Order : 03.03.2025
7. Date of Pronouncement : 24.03.2025
8. Final Order : CONVICTED
Argued by:- Sh. Kamal Singh, Counsel for the complainant.
Sh. Vipin Kumar, Counsel for the accused.
CC NI ACT 142/2023
Digitally signed
by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
16:50:07 +0530
Madan Lal Kalkal vs. Rajesh Kumar
2/15
FACTUAL MATRIX (version of the complainant)
1. The present complaint is filed against the accused Rajesh Kumar s/o Late
Sh. Shriram under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as "NI Act"). The substance of allegations of the
complainant, Madan Lal Kalkal, is that he advanced a friendly loan of Rs.
1,25,000/-(Rs. 1,00,000/- through cheque and Rs. 25,000/- in cash) to accused on
01.08.2022.
2. Thereafter, in discharge of his liability, the accused, finally, issued five
cheques, bearing no. 599215, 599217, 599218, 599219 and 599220, all dated
01.12.2022, amounting to Rs. 20,000/- each, all drawn on The Nainital Bank
Ltd (hereinafter referred to as "cheques in question") in favour of complainant
in discharge of his legal liability. The cheques in question, when presented, were
retuned unpaid vide returning memo dated 15.12.2022 for cheque bearing no.
599215 and returning memos dated 13.12.2022 for remaining four cheques, with the
remarks "funds insufficient". Thereafter, the complainant issued demand notice
through Speed Post. Even after the receipt of demand notice, the accused failed to
pay the cheque amount within the stipulated period and hence, the present
complaint has been filed.
PROCEEDINGS IN THE CASE
3. On finding a prima facie case against the accused, he was summoned to face
trial vide order dated 24.01.2023.
4. After his appearance, notice of accusation under Section 251, Code of
Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was served upon him
on 05.10.2023. In reply to the notice of accusation, the accused pleaded not guilty
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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and claimed trial. He has admitted that he is signatory to the cheque in question.
He further stated as under:-
"I do not know the complainant. I have never issued the cheque in question
to the complainant. I have never met with the complainant and have no
dealings with him. I had issued the cheques in question to person namely
Naresh. The complainant in connivance with Naresh has misused my
cheques given to Naresh. I have repaid Naresh. I have no liability towards
the complainant or Naresh."
5. During the trial, the complainant has led the following oral and documentary
evidence against the accused to prove his case beyond reasonable doubt:-
ORAL EVIDENCE
CW 1 : Madan Lal Kalkal (Complainant)
DOCUMENTARY EVIDENCE
Ex. CW1/A : Evidence by way of affidavit of CW1
Ex.CW1/1 : Original Cheque bearing no. 599215 dt. 12.12.2022
Ex.CW1/2 : Original Cheque bearing no. 599217 dt. 12.12.2022
Ex.CW1/3 : Original Cheque bearing no. 599218 dt. 12.12.2022
Ex. CW1/4 : Original Cheque bearing no. 599219 dt. 12.12.2022
Ex. CW1/5 : Original Cheque bearing no. 599220 dt. 12.12.2022
Ex. CW1/6(colly) : Cheque Return memos running into five pages.
Ex. CW1/7 : Legal notice dated 19.12.2022.
Ex. CW1/8 : Postal receipts
Ex. CW1/9 : Tracking report
Ex. Mark 'X' : Copy of promissory note.
After leading the aforesaid evidence, the complainant closed his evidence.
6. The complainant was cross-examined by the Ld. Counsel for the accused on
29.06.2024 after an oral request of the accused under Section 145 (2) of NI Act
was allowed. Thereafter, before the start of defence evidence, in order to allow the
accused to personally explain the incriminating circumstances appearing in
CC NI ACT 142/2023
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by ASHIMA
LAKHANPALL
ASHIMA
LAKHANPALL Date:
2025.03.24
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evidence against him, the statement of the accused was recorded without oath
under Section 313 Cr.P.C. In reply, the accused accepted the dishonour of cheque
in question and receipt of legal notice. Further, he stated, as under:
"The complainant has filed false evidence affidavit Ex. CW-1/A. I never
issued the cheques in question Ex. CW-1/1 to Ex. CW 1/5 to the
complainant but to person namely Sh. Naresh. The cheque return memos
Ex. CW-1/6(Colly) are correct. I have not received the legal demand
notice Ex. CW-1/7. I cannot comment upon the postal receipts Ex. CW-1/8
and tracking report Ex. CW 1/9. Ex. CW 1/10/Mark X bears my signatures
but the same was signed as blank and was never issued to the complainant
but to Sh. Naresh with whom I was in financial dealings. The complainant
in connivance with Sh. Naresh has misused my cheques to file the present
case."
7. The accused did not choose to lead any defence evidence and
accordingly, the right to lead DE was closed and the matter was fixed for final
arguments.
FINAL ARGUMENTS ADDRESSED BY THE LD. COUNSEL FOR THE
PARTIES
8. Ld. counsel for the complainant while re-iterating the contents of the
complaint has argued that all the requirements of Section 138, N.I. Act have been
fulfilled by the complainant in the present case. He has argued that the cheques in
question, amounting to total of Rs. 1,00,000/-, were issued by the accused against
an advanced amount of Rs. 1,25,000/-, hence, the cheques in question were issued
towards a legally enforceable liability of the accused. He has further argued that
when the cheques were presented before the bank for encashment, the same were
dishonored and thereafter, legal notice was sent to the accused to make the
payment, but no payment was made by the accused within the stipulated period of
15 days. He has further relied upon the promissory note dated 01.08.2022 filed by
him to support his case. He has further drawn the attention of the court to the
reply to the notice u/s. 251 and argued that the accused has admitted his
CC NI ACT 142/2023
Digitally signed
by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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signatures on it. He has submitted that all the ingredients of section 138 NI Act
have been duly satisfied and presumption u/s 139 NI Act be drawn in favour of
the complainant. Ld. Counsel for the complainant has further argued that the
accused has failed to raise any probable defence to disprove the case of
complainant and rebut the presumption u/s 139 NI Act. Thus, the case of the
complainant is bonafide. Therefore, accused be convicted for the offence u/s 138
NI Act.
9. Per contra, ld. counsel for the accused has argued that the complainant has
failed to establish his case beyond reasonable doubt. He submits that the accused
has no legal liability towards the complainant. He has argued that the cheques in
question were not given to the complainant but to one person namely Naresh. He
has further argued that the complainant in connivance with Naresh has misused the
cheques in question. He has further drawn the attention of the court to the
discrepancies in the cross-examination of the complainant to support his case. He
has further argued that the promissory note, on which the complainant is relying, is
not filed in original. Finally, he has submitted that the accused has proved his
defence and prayed that he be acquitted in the present case.
DISCUSSION BY THIS COURT
10. Before dwelling into the facts of the present case, it would be apposite to
discuss the legal standards to be met by both sides. The complainant has to prove
the ingredients of offence under section 138 NI Act, which are as under:-
First Ingredient: The cheque was drawn by a person on an account maintained
by him for payment of money and the same is presented for payment within a
period of 3 months from the date on which it is drawn or within the period of its
validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any
legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either
CC NI ACT 142/2023
Digitally signed
by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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insufficiency of funds in the account to honour the cheque or that it exceeds the
amount arranged to be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or
holder in due course of the cheque by a notice in writing given to the drawer
within thirty days of the receipt of information of the dishonour of cheque from
the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of
money within fifteen days from the date of receipt of notice.
11. The accused can only be held guilty of the offence under Section 138 NI Act
if the above-mentioned ingredients are proved by the complainant co-extensively.
Additionally, the conditions stipulated under Section 142 NI Act have to be
fulfilled.
12. The proof of first and third ingredient is not disputed. The complainant has
proved the original cheques, Ex. CW1/1, Ex. CW1/2, Ex. CW1/3, Ex. CW1/4 and
Ex. CW1/5 which the accused has not disputed as being drawn on his account. It is
not disputed that the cheques in question were presented within the validity period.
The cheques in question were returned unpaid vide respective return memos, Ex.
CW1/6 (colly) due to the reason, "Funds Insufficient". The accused has admitted
the returning memos in his statement of admissions and denials. As such, on the
basis of the above, the first and third ingredient of the offence under Section 138
NI Act stands proved.
13. With regard to the fourth and fifth ingredient, the complainant has proved on
record legal notice Ex. CW1/7 and postal receipt Ex. CW1/8 dated 19.12.2022.
Thus, the legal notice was duly sent by the counsel for the complainant within 30
days from the date of knowledge of dishonour memos. The postal receipt is
addressed to the accused and is supported by a Tracking Report Ex. CW1/9 which
confirms the delivery of the same. Although, the receipt of legal notice Ex. CW1/7
CC NI ACT 142/2023
Digitally signed
by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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is not accepted by the accused in his Plea of defence under Section 251 Cr.P.C and
statement under 313 Cr.P.C., however, the accused has admitted that the address
mentioned in the Legal Notice is his correct address. Considering the above facts,
the court draws a presumption under section 114(f) of the Indian Evidence Act,
1872 that the legal notice was duly sent on the correct address of the accused in the
general course of business and accordingly, accused had the knowledge of its
contents. Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal
No. 767 of 2007), the Hon'ble Apex Court has held that "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 the complaint u/s. 138 of the Act, make
payment of the cheque amount and submit to the court that he had made payment
within 15 days of receipt of summons (by receiving a copy of complaint with the
summons) and therefore, the complaint is liable to be rejected. A person who does
not pay within 15 days of receipt of the summons from the court alongwith the
copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was
no proper service of notice as required u/s. 138, by ignoring statutory presumption
to the contrary u/s 27 of the General Clauses Act and Section 114 of the Evidence
Act". Further, the fact that the payment was not made within 15 days of the receipt
of the legal notice is also not disputed. Therefore, the fourth and the fifth
ingredient of the offence also stands proved.
14. Now, it remains to be ascertained if the second ingredient is proved or not.
The accused has admitted being a signatory to the cheques in question in reply to
notice under section 251 Cr.P.C. and statement under Section 313 CrPC. Under the
NI Act, once the accused admits his signatures on the cheque(s), certain
presumptions are drawn in favour of the complainant which shift the onus of proof
on the accused. The first presumption is mentioned under Section 118(a) of the NI
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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Act which lays down the presumption that every negotiable instrument was made
or drawn for consideration. The second presumption is contained under Section
139 of NI Act which lays down the presumption that the holder of the cheque
received it for the discharge, in whole or part, of any debt or other liability. The
combined effect of these two provisions is a presumption that the cheque(s) were
drawn for consideration and given by the accused for the discharge of debt or other
liability. Both the sections use the word "shall", which makes raising the
presumption imperative for the court, once the foundational facts required to raise
the presumption are proved. This position of law is reflected in judgment of
Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC
16. Thus, the said presumptions are raised in favour of the complainant.
15. Pertinently, the principles pertaining to the presumptions and the onus of
proof have been summarized by the Hon'ble Apex Court in Basalingappa vs.
Mudibasappa (2019) 5 SCC 418 as under:
"25.1. Once the execution of cheque is admitted, Section 139 of the Act
mandates a presumption that the cheque was for the discharge of any debt or
other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the
onus is on the accused to raise probable defence. The standard of proof for
rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence
led by him or the 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.
25.4. 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."
16. In view of the above principles, a reverse onus is cast on the accused, who
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
16:51:45 +0530
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has to establish a probable defence on the standard of preponderance of
probabilities to prove that either there was no legally enforceable debt or other
liability. In the present case, the defences raised by the ld. counsel for the accused
to rebut the presumption are discussed below.
17. The accused has raised a defence that there is no legal liability of the
accused as the cheques in question were not given to the complainant but to one
person namely Naresh. It is his case that the complainant in connivance with
Naresh has misused the cheques in question which were given to Naresh as blank
signed security cheques.
18. Keeping in mind the fact that the accused has chosen not to lead Defence
Evidence, it is crucial for the court to evaluate and appreciate the following in
order to assess the "probable defence", if any, of the accused:
(a) The plea of defence of accused recorded u/s 251 CrPC and
statement of accused recorded u/s 313 CrPC.
(b) cross-examination of complainant.
19. Pertinently, the accused has stated in his reply to notice under section 251
Cr.P.C. that he did not issue the cheques in question to the complainant but to one
person namely Naresh. The accused has categorically stated that he never even met
the complainant and do not even know him. Ld. counsel for the accused has cross-
examined the complainant on this aspect wherein the complainant has stated that
he had called the accused number of times before filing the case. He has further
stated that he had received a call from accused. The complainant has further
mentioned the phone number of the accused after looking at his phone during
cross-examination. In view of the presumptions in favour of the complainant, the
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
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burden was upon the accused to prove that the complainant is deposing falsely and
accused has never met or known the complainant him before. The accused had the
opportunity to ask the complainant to produce the call records or bring his own call
records to show that no such call was received from the complainant or made by
him to the complainant; however, the said fact was neither disputed at the time of
cross-examination nor any evidence was led by the accused to disprove this fact
and prove his version of events.
20. Further, Ld. Counsel for the accused has argued that the complainant has not
filed the promissory note i.e. Mark 'X' in original to support his case despite
having the same in original. He has argued that the same is not filed in original as
it is in the handwriting of the complainant. It is pertinent to note that the accused
has admitted to signing the said promissory note in his statement of admissions and
denials. He has further stated that he had signed the same without reading it as he
does not know how to read. He has further stated that the same was signed at the
instance of Naresh at his home. To the contrary, in his statement recorded under
section 313 Cr.P.C., the accused has taken a U-turn from his previous statement
and stated that the said document was blank when it was signed. This contradiction
clearly shows that the statement of the accused that the said document was blank
when he signed it is an afterthought. Moreover, even if either of his versions is to
be believed, then also a reasonable prudent person would neither sign a blank
document nor a written document without going through its contents. It is not the
case of accused that the same was signed under force, fraud or coercion. Further,
Ld. Counsel has only given a suggestion that the original has not been produced
because the same is in the handwriting of the complainant. If that was the case,
then the accused could have sought the production of the promissory note in
original and get the same examined by a hand writing expert, however, a mere
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
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suggestion does not prove the case of the accused. Further, even if it is believed
that the said promissory note was written by the complainant that does not make
any difference as the accused has clearly admitted the signatures on the said
document. Rather it supports the case of the complainant. Thus, the court finds no
difficulty in placing reliance upon the copy of the promissory note and is not
inclined to draw an adverse inference on account of non-production of the original.
Perusal of the promissory note clearly shows that the accused has admitted to
receiving money from the accused by way of cheque as well as cash and issued the
cheques in question to him in discharge of a legal liability. This corroborates the
story of the complainant in his complaint as well as evidence affidavit i.e. Ex.
CW1/A.
21. Even otherwise, if the promissory note is not taken into consideration, the
accused has the burden to prove his case in view of the statutory presumptions in
favour of the complainant. It is the story of the accused that he had taken money
from Naresh and given the cheques in question to him and not to the complainant.
It is further his case that the entire money has already been repaid. However, the
accused has not examined himself as witness and stated any date, month or year in
which the said money was taken and cheques in question were given to Naresh. He
has further not stated as to when the said money was returned back to Naresh or
brought any proof to show the return of money. Further, the accused has not
examined any other witness in front of whom the said money was
borrowed/returned to Naresh and cheques in question were given to him. Non-
mentioning of such crucial details and non-examination of material witnesses
compels the court to draw an adverse inference against the accused. Further, the
accused has not passed the test of a reasonable prudent person. A reasonable
person would immediately demand the return of cheque on repayment of loan
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
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amount and on failure of the lender to return the same, he would file a police
complaint and make a request to the bank to stop payment of the concerned
cheque. In the present case, the accused has not stated in his reply to notice under
251 Cr.P.C. or statement under 313 Cr.P.C. that he demanded back the cheque in
question from the Naresh but he refused to return the same. The accused has
neither filed any police complaint against the misuse of his cheque nor made any
request to the bank to stop payment of the cheque in question. Thus, the failure of
accused to take reasonable action creates a suspicion in the mind of the court with
regard to his version of events. Thus, making bald statements in the absence of
leading cogent evidence does not prove the case of the accused.
22. Further, Ld. Counsel for the accused has argued that he has punched holes in
the story of the complainant on the basis of preponderance of probabilities while
relying upon the judgement of the Hon'ble Supreme Court in Rajaram S/O
Sriramulu Naidu(Since deceased) through L.R.s v. Maruthachalam(Since
deceased) through L.R.s. Ld. counsel has drawn the attention of the court to the
following statement of the complainant made in his cross-examination:
"It is correct that I had not issued the cheque stated by me to the accused as
a account payee cheque. It is also correct that I have not used any other
banking channel apart from the cheque to pay the alleged amount to the
accused."
Ld. counsel for the accused has argued that the cheque through which the alleged
amount of 1 Lac was given by the complainant was not an account payee cheque,
therefore, the complainant has not proved the transfer of loan. Clearly, the accused
has denied receiving any money from the complainant and he could prove that no
money was received by him from the complainant through cheque by producing
his bank statement. Further, ld. Counsel for the accused has not asked any question
Digitally signed
CC NI ACT 142/2023 by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date:
2025.03.24
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with regard to the number of cheque or date of issuing cheque, however, he has
asked a particular question with regard to the nature of cheque issued by the
complainant. It is not comprehensible to the mind of the court as to how the
accused has the specific knowledge that the cheque was not an account payee
cheque. The said question put by the Ld. Counsel for the accused compels the
court to draw an inference that the accused was in knowledge of the cheque
through which the loan is alleged to be given by the complainant. Further, even if
it is presumed that the said question was asked without any knowledge of the
cheque, then also, mere admission that the cheque was not an account payee
cheque does not itself prove that the same was not encashed by the accused. It is
also important to mention here that it is not written anywhere in the statute of NI
Act that the loan given vide a cheque by the complainant to the accused has to be
an account payee cheque and only in that eventuality, the payment of loan through
cheque becomes a valid legal liability. Further, in view of the statutory
presumption that cheque was issued for consideration and in discharge of valid
legal liability when the signatures are admitted on a cheque, the burden was on the
accused to show that he never received any money through any cheque of the
complainant. For this, the accused could have summoned the bank witness along
with the cheque clearance details. However, the accused failed to examine any
material witness in his support. Further, there is a clear mention of the cheque
number through which the loan is given by the complainant in the promissory note.
Therefore, keeping in consideration the above discussion, this argument of the ld.
Counsel for the accused is without substance and the judgment relied upon the Ld.
Counsel for the accused does not come to the rescue of the accused in the facts of
the case.
23. Further, Ld. Counsel for the accused has argued that blank signed cheques
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ASHIMA LAKHANPALL
LAKHANPALL Date:
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were given to Naresh which have been filled by the complainant. Even if it is
believed for the sake of argument that the cheques in question have not been filled
by the accused but by the complainant, even then, the aforesaid contention of the
Ld. Counsel for the accused is not sustainable since it is immaterial whether the
cheques have been filled by the complainant or the accused once the cheques have
been admitted to be duly signed by the drawer accused. It is a settled position of
law that if a signed blank cheque is voluntarily presented to a payee, towards some
payment, the payee may fill up the amount and other particulars Reliance in this
regard is placed by this court upon the judgment of Hon'ble Apex Court in Bir
Singh v. Mukesh Kumar, (2019) 4 SCC 197). Hence, it is immaterial as who has
filled the cheque in question. The onus would still be on the accused to prove that
the cheque was not given in discharge of a debt or liability by adducing reliable
evidence.
24. Thus, in view of the above discussion and considering that the accused has
neither produced any cogent documentary or oral evidence in his support nor been
able to impeach the testimony of the complainant in his cross-examination, the
defence of the accused that the cheques were given to Naresh and not to the
complainant, is hereby, rejected. Hence, it stands proved that the cheques in
question were issued by the accused towards the discharge of a valid legal liability.
Therefore, the second ingredient is also proved in the present case.
DECISION
25. To recapitulate the above discussion, the complainant has been successful in
establishing his case. The signatures on the cheque are admitted by the accused and
the presumption under Section 118 and Section 139 of NI Act is raised against the
accused. The accused has failed to rebut the said presumption by raising a probable
defence on the standard of preponderance of probabilities.
CC NI ACT 142/2023
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by ASHIMA
ASHIMA LAKHANPALL
LAKHANPALL Date: 2025.03.24
16:52:39 +0530
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26. Resultantly, the complaint of the complainant is allowed and accused Rajesh
Kumar is hereby convicted of the offence of Section 138 of the Negotiable
Instruments Act, 1881. Let the convict be heard separately on quantum of sentence.
ORDER:- CONVICTION Digitally signed Pronounced in open court on 24.03.2025. ASHIMA by ASHIMA LAKHANPALL Copy of the judgment be uploaded as per rules. LAKHANPALL Date: 2025.03.24 Copy of this judgment be given to the convict free of cost. 16:52:47 +0530 (Ashima Lakhanpall) JMFC (NI Act) Digital Court-01, Shahdara, KKD, New Delhi.
Note: This judgment contains 15 pages and each page has been signed by the presiding officer.
CC NI ACT 142/2023