Delhi District Court
Sunil Kumar vs Raj Kumar Verma on 5 June, 2025
THE COURT OF Ms. RAVISHA SIDANA
JUDICIAL MAGISTRATE FIRST CLASS, NI ACT, DIGITAL
COURT, NORTH-EAST
KKD, DELHI
(Reserved Judgment on Transfer vide order dt. 30.05.2025)
CC NO. 1099/2022
SUNIL KUMAR
S/o Sh. Krishan
R/o H.No. 49-G/ Gali No. 16,
Jai Prakash Nagar, Ghonda,
New Old Hansraj Diary, Delhi
Delhi-110053 ......... Complainant
vs.
RAJ KUMAR VARMA
S/o Sh. Anokhey Lal
R/o H.No.C-60/1A, Gali No. 1,
First Floor, Near Bhajanpura
Bus Stand,
Delhi- 110053 ........ Accused
1.Offence complained of Section 138 of Negotiable or proved Instruments Act, 1881 (NI Act)
2. Date of Filing 23.09.2022
3. Plea of Accused Not Guilty
4. Date of Reserving Order 02.05.2025
5. Date of Pronouncement 05.06.2025
6. Final Order Acquittal Argued by :-
Ld. counsel for the complainant Sh. Arun Kumar Ld. counsel for the accused Sh. Prem Prakash Soni Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:52:39 +0530 BRIEF STATEMENT OF REASONS FOR THE DECISION:- FACTUAL MATRIX
1. Vide this judgment the present complaint case for an offence punishable U/S.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
2. It is a case of the complainant that the complainant has been having friendly relations with the accused. In December 2021, the accused approached the complainant on the pretext of financial crisis and requested the complainant to lend a sum of Rs.
3,00,000/- for a period of six months. Accordingly, the complainant gave the amount of Rs. 3,00,000/- as friendly loan in cash to the accused. After the tenure of six months expired, when the complainant approached the accused in June 2022 for returning the aforesaid friendly loan of Rs. 3,00,000/- and the accused had issued one cheque bearing no. 270071 dt. 15.07.2022 of Rs.3,00,000/- drawn on Union Bank of India, Garhi Mandu Branch, Bhajanpura, Delhi in favour of the complainant in discharge of his legal liability and assured that the same would be honoured on its presentation.
3. As per the instructions of the accused, the complainant presented the impugned cheque before his banker for encashment with his bank i.e. HDFC Bank, Yamuna Vihar, Delhi but the said cheque was dishonoured and returned unpaid with remarks "Funds insufficient" vide return memo dated 26.08.2022.
4. Despite several requests and intimations and the grant of grace period to the accused, with no alternative to his rescue, the Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:52:51 +0530 complainant had sent a legal notice dated 18.08.2022 to the accused through his counsel regarding the dishonour of the aforesaid cheque was served upon the accused through Whatsapp number of the accused. The accused has neither reply nor make payment of the cheque amount and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
5. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dated 12.10.2022.
6. Accordingly, on 12.12.2022 upon first appearance of the accused, the accused was released on bail and vide the same date, notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, the accused has admitted his signatures on the cheque in question and stated that other details have not been filled by him as he had issued a blank signed cheque to the complainant. He has admitted his address to be correct but denied having received the legal demand notice by clarifying that the floor is wrongly mentioned. Accused has further stated during his plea of defence that he knows the complainant through one property dealer named Pappan sharma, who aided him in selling his property. He stated to have borrowed Rs 2,00,000 from Pappan sharma on 23.01.2020 for marriage of his daughter and the impugned cheque was issued to Pappan sharma as security. The aforesaid amount was received by Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:52:59 +0530 him from the account of Manju Sharma i.e. wife of pappan sharma, which is duly repaid. The complainant used to accompany pappan sharma and he had no dealings with the complainant. He does not owe the any liability of towards the complainant.
7. In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence and relied upon the following documents:
i) Ex. CW1/1 (OSR) is Aadhaar Card
ii) Ex. CW1/2 is Original cheque no. 270071
iii) Ex. CW1/3 is returning memo dt. 26.07.2022
iv) Ex.CW1/4 is Legal Notice dt. 18.08.2022
v) Mark A is Tracking Report
vi) Ex.CW1/6 is Speed post receipt
vii) Mark B is Screenshot of whatsapp delivery of Notice
viii) Ex.CW1/8 is Return envelope of legal demand notice
8. CW1/complainant was cross examined at length. on behalf of the accused. Thereafter, CE was closed.
9. The accused was then examined under Section 313 Cr.P.C., 1973 wherein all the incriminating evidence were put to the accused and accused has stated that impugned cheque was issued for security purpose to Pappan sharma, who is friend of the complainant. He denied the receipt of legal demand notice. He wished to lead DE by stating that he owes no liability towards the complainant.
10. DW1 (accused) was examined and cross examined on behalf Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:53:06 +0530 of the complainant. Thereafter, DE was closed.
12. It has been argued by Ld. Counsel for the complainant that the case of the complainant is proved and the cheque is also in the favour of the complainant, therefore, the accused must be convicted and the amount should be recovered. On the other hand, Ld. Counsel for the accused has argued that the cause of action for filing the present complaint did not arose as legal demand notice was never received by the accused and further the accused has been falsely implicated in this case and that the complainant has not been able to prove its case beyond reasonable doubt against the accused.
13. I have heard ld. counsel for the complainant and Ld. Defence counsel for the accused & considered the respective arguments as well as gone through the case file very carefully.
14. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence as laid down by Hon'ble supreme court in Gimpex Private Limited vs. Manoj Goel(2022) 11 SCC 705:
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 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;
RAVISHA SIDANA Digitally signed by RAVISHA SIDANA Date: 2025.06.09 15:53:12 +0530 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.
14.1 It is settled law that once the execution of cheque is admitted, Presumption under section 139 of NI act is raised in favour of the complainant. The presumption raised is a rebuttable presumption and the onus on the accused to raise a probable defence. The standard of proof for rebutting, the presumption is that of preponderance of probabilities. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513] 14.2 The phrase "unless the contrary is proved" u/s 139 is of vital importance clarifying that the rebuttal of the presumption has to be supported by proof and not mere plausible explanation. The liberty is granted to the accused to either rely on evidence led by him in his support or the material relied by the complainant to raise his probable defence. In addition to the materials brought on record, the circumstances relied upon can also draw the inference of preponderance of probability lying in the favour of the accused.
15. In the case at hand, the proof of the first and third ingredient is not disputed. The complainant has proved the original cheque (Ex. CW1/2), which the accused has not disputed as being drawn on his account. It is not disputed that the cheque in question were presented within the validity period. The cheque in question were returned unpaid vide return memo (Ex. CW1/3) due to the reason, RAVISHA SIDANA Digitally signed by RAVISHA SIDANA Date: 2025.06.09 15:53:18 +0530 "Funds insufficient", which falls strictly within the purview of section 138 NI Act. As such, on the basis of the above, the first and third ingredient of the offence under Section 138 NI Act stands proved.
15.1 With regard to the fourth and fifth ingredient, the complainant has proved on record legal notice Ex. CW1/4 and postal receipt Ex. CW1/6. In Ergo, the accused has denied receipt of the legal demand notice in his Notice framed u/s 251 Cr.P.C. as well as in his Statement recorded u/s 313 Cr.P.C, and the address mentioned in the legal demand Notice is also disputed. The fact that the payment was not made within 15 days of the receipt of the legal notice also becomes disputed. Therefore, the fourth ingredient requires adjudication subject to which, the fifth ingredient of the offence shall stand proved.
DELIVERY OF LEGAL DEMAND NOTICE
16. The perusal of Legal Demand Notice Ex. CW1/4 dt 18.08.22 reflects the address of the accused to be "C-60/1A, Gali No.1, First floor, Near bhajanpura Bus stand,Delhi-110053".
The abovesaid address is stated to be wrong by the accused during the stage of notice framing citing that the floor is wrongly mentioned and the same also finds corroboration from the address mentioned by the accused in his Bail bonds furnished upon the grant of bail annexed with the Judicial file. In this regard, address on the ID proof of the accused has also been perused. It mentions the floor of the house of the accused as "Second floor' and not the "first floor" as endorsed on the legal demand notice (Ex.CW1/4) and Returned speed post envelope (Ex.CW1/6).
RAVISHA SIDANA Digitally signed by RAVISHA SIDANA Date: 2025.06.09 15:53:24 +0530 The postal receipt Ex. CW1/6 was addressed to the accused and sent by the counsel for the complainant is dated 18.08.2022, which as per Tracking report (Mark A) shows that legal demand notice was undelivered at point A and point B with remarks "addressee could not be located". Further, the returned envelope of the speed post courier was returned back undelivered on 22.08.2022 and 23.08.2022 and the delivery is confirmed at the "Civil Lines SO North Delhi", whereas the address of the accused pertains to "Seelampur SO"
16.1 The attention of the court is drawn to the Para no. 9 of PSE Affidavit, which is as follows :
"The legal demand notice was sent at the correct address of the accused and the same was not served upon the accused but the accused despite the receipt of the legal demand notice on Whatsapp has neither made any payment of the cheque amount nor sent any reply to the said legal demand notice"
16.2 Further, upon confrontation with the aforesaid portion of the PSE Affidavit, the complainant (CW1) admitted that legal notice was not served upon the accused and the Whatsapp screenshot of service (Mark B) does not mentions the mobile number of the accused. The complainant, whilst being confronted with Returned Envelope, made an unequivocal admission that the legal notice was sent at the wrong address and that no certificate has been annexed with Tracking Report (Mark A).
16.3 The presumption of service raised by the Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr.VI Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:53:31 +0530 (2007) SLT 442, that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of the proviso to Section 138 of the NI Act stands complied with.
16.4 Therefore, the present case is distinguishable to the facts in hand as the legal demand notice was sent at the incorrect address. Therefore, the defence of the accused that he had not received the legal demand notice strikes at the threshold of the complaint as it is duly admitted by the complainant during his cross-examination and on reading the documents placed on record that the legal demand notice was unserved through speed post. Further, screenshot of Whatsapp service of notice, without the mandatory certification under section 65-B Indian Evidence Act is inadmissible in law and therefore, it cannot be read in evidence. In the light of aforesaid observations, the fourth and the fifth ingredient stand disproved.
16.5 This Court places its reliance on the judgment passed by The Hon'ble High Court of Delhi in case titled as "RL Varma and Sons vs. P C Sharma" Revision Petition (Crl) 438o0f 2017". It was held that the notice had been sent via registered post but returned unsent as there had been no one to receive it. The presumption of service of notice could not be held in favour of the complainant if the notice was sent to the incorrect address. As the necessary notice had not been served, the complaint could not be considered as valid. Legal presumption of service of notice can only arise in the case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. Further, Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:53:37 +0530 Section 138 NI Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. On examination of the evidence on record, the complainant has failed to comply with the mandatory requirement of issuance of legal demand notice u/s 138 NI Act. Thus, the version of the complainant without any proof is not tenable at all and cannot be sustained.
16.6 In view of the above discussion, the accused has been able to raise a probable defence and has been able to prove his defence on the basis of preponderance of probabilities that no legal notice were ever served to him by the complainant and the complainant has failed to prove ingredient no. (iv) and (v) qua the accused in respect of due service of legal notice under section 138 of NI Act as a pre-condition to section 138 NI Act.
17. Resultantly, the accused RAJ KUMAR VERMA is, thus, Digitally stands acquitted for the said offence. signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.06.09 15:53:44 +0530 (RAVISHA SIDANA) JMFC-NI ACT (DIGITAL COURT) NORTH EAST;KKD COURTS;DELHI This Judgment consists of ten pages and each page has been digitally signed by me