Delhi District Court
Akshay Kumar vs Ravi Parkash on 25 July, 2025
IN THE COURT OF MS. SHUBHANGI AGGARWAL,
JUDICIAL MAGISTRATE FIRST CLASS, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW
DELHI
Ct. Case No. 10575/2018
CNR No. DLSW02-013636-2018
Akshay Kumar
Complainant
(Through: Advocate Ms. Pooja Arora)
Vs.
Ravi Prakash
Accused
(Through: Advocate Sh. Rakesh Kumar)
Sr. Particulars Details
No
1. Name and Akshay Kumar,
address of the R/o 290/345, Gali no.3
Complainant West Sagarpur, New Delhi-110046.
2. Name and Ravi Prakash,
address of the S/o Sh. Hari Lal, R/o RZ-103/A,
Accused Street no.4, East Sagarpur, Nangal
Raya, South West Delhi, Delhi-
110046.
3. Offence U/s 138 of Negotiable Instruments
complained of Act, 1881
4. Plea of the Pleaded not guilty.
accused
5. Final order ACQUITTED
6. Date of institution 20.03.2025.
7. Date of 25.07.2025
pronouncement
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JUDGMENT
1. The Complainant has filed the present complaint under
Section 138 of Negotiable Instruments Act, 1881 (“NI
Act“) against the accused, averring that the accused is a
close friend of the complainant and that in first week of
August 2017, the accused requested the complainant to
provide him a friendly loan of Rs. 1,50,000 with the
promise that he will repay the said loan by the end of
October 2017. It is the case of the complainant that he
could arrange only Rs. 1,30,000 and gave the loan to the
accused in first week of August itself.
2. As per the complainant, the complainant asked the
accused to repay the loan in last week of October, and the
accused sought a period of one week to make the said
payment. However, as per the complainant, the accused
kept delaying the payment and on 4 th December the
complainant visited the house of the accused to ask for
repayment of his loan. It was then that the accused gave
the cheque in question to the complainant.
3. It is the case of complainant that the cheque in question
got dishonoured with the remarks of ‘funds insufficient’
vide return memo dated 12.12.2017. Thereafter, the
complainant is stated to have informed the accused about
the dishonour of the cheque, and then the accused
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requested the complainant to deposit the cheque again
after 3-4 days with assurance that cheque would be
honoured. However, as per the averments of the
Complainant, the cheque in question again got
dishonoured with the remarks of ‘funds insufficient’ vide
return memo dated 24.01.2018.
4. The complainant further stated that the legal demand
notice dated 01.02.2018 was sent to the accused and it
was duly delivered to the accused on 07.02.2018. It is
further stated that the accused failed to make the payment
within the stipulated period and hence, the Complainant
filed the present complaint.
Summoning order, appearance of accused, admission to
bail and Framing of Notice u/s 251 CrPC
5. After taking pre-summoning evidence, Accused was
ordered to be summoned in this case for commission of
offence under Section 138 of Negotiable Instruments Act,
1881 (“NI Act“), vide order dated 18.05.2018.
6. Accused appeared on 09.10.2018 and was granted bail.
On finding a prima facie case, notice U/s 251 of the
Criminal Procedure Code, 1973 (“hereinafter referred
as CrPC“) was served upon the Accused on to which he
pleaded not guilty and claimed trial. The accused stated
in his defence as follows:
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“The cheque-in question bears my signature.
However, I had handed over the cheque-in question
in a blank signed condition to my friend Naresh
Kumar r/o Nangal Rai, Delhi. I have no
acquaintance with the complainant. I had not
received the legal demand notice sent by the
complainant as the construction of my house was
going on at the relevant time. On enquiry from my
friend, Naresh, it was found that my friend Naresh
had handed over the cheque-in question to someone.
The said Naresh had requested me to handover one
blank signed cheque as he required the same for
taking loan from some person. I had handed over the
cheque-in question to Naresh as he was my friend
and was in need.”
7. The matter was then listed for cross-examination vide
order dated 12.11.2018.
Complainant Evidence
8. Thereafter, the matter was listed for the recording of
complainant evidence. To prove his case against the
accused, the complainant appeared as a witness where he
adopted his pre-summoning evidence as post summoning
evidence. In his evidence by way of affidavit, the
complainant reiterated all the facts, as stated in the
complaint on oath supported by the following documents
on record:
Sr. No Exhibits Documents
1. Ex. CW-1/1 Original Cheque No. 020951
dated 09.12.2017 for Rs.
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1,30,000.
2. Ex. CW-1/2 Returning memo with the
reason "funds Insufficient"
dated 24.01.2018
3. Ex. CW-1/3 Tracking Report
4. Ex. CW-1/4 Certificate under section 65B
of Indian Evidence Act
5. Ex. CW-1/5 Legal Notice dated 01.02.2018
6. Ex CW-1/6 Postal Receipts
9. Thereafter, CW-1 closed complainant evidence vide
separate statement on 06.03.2023.
The Statement of The Accused Under Section 313 Cr. PC. /
Defence Of the Accused
10. The statement of the accused u/s 313 r/w Section 281
Cr.P.C., was recorded on 20.04.2023 wherein all the
incriminating facts and evidence were put to him. The
accused wished to lead DE and took the defence that:
“I do not know the complainant. I gave the cheque
in issue to my friend Mr. Naresh Kumar. Mr. Naresh
Kumar took some amount from complainant to open
a shop and also returned the same to the
complainant. The complainant demanded a cheque
as a guarantee at the time of giving money to Naresh
Kumar and therefore I gave the cheque to Naresh
Kumar. I did not take any money from the
complainant. Complainant was threatening me. I
told him that Naresh has already repaid him the
money. But the complainant presented this cheque.
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Naresh has also filed a case against complainant at
PS Sagarpur.”
Defence Evidence
11. Perusal of the record shows that the accused filed a list of
witnesses dated 05.06.2023 in which he included five
witnesses. The accused also moved an application under
section 315 of CrPC which was allowed vide order dated
05.06.2023 and witnesses listed at serial number 3 and 4
in the list of witnesses were dropped vide the same order.
Subsequently the accused was examined as DW1. HC
Ramphool was also examined as DW2. Subsequently, Mr.
Naresh Kumar was examined as DW-3 and several
opportunities were granted to the complainant to cross-
examine DW-3, however the complainant failed to do so
and vide order dated 24.08.2024, the right of the
complainant to cross examine DW3 was closed.
Final arguments
12. Ld. Counsel for the complainant argued that the
complainant has proved that the impugned cheque was
dishonoured and the facts stated in the complaint have
been proved by the complainant by examining
complainant as CW1. Lastly, he reiterates that the
complainant has established all the essential ingredients of
the offence under section 138 of NI Act, however, the
accused has miserably failed to discharge the burden of
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proof cast upon him and therefore he must be held guilty
for the offence u/s 138 NI act. It has also been argued that
there are several inconsistencies in the defence of the
accused.
13. Per Contra, ld. Counsel for the accused has argued that the
complainant has filed a false case against the accused and
the the accused does not owe any legal liability towards
the complainant as he did not take any loan from him. It
has been argued that the loan was taken by friend of the
accused, and the accused has given his cheque as a
guarantee. It is further argued that accused does not even
know the complainant.
Legal Framework
14. The Hon’ble Supreme Court of India in Kusum Ingots &
Alloys Ltd and Ors v. K Pennar Peterson Securities Ltd
and Ors., (2000) 2 SCC 745 (“Kusum Ingots Case”), has
clearly discussed the ingredients of offence under section
138 NI Act as follows:
“(i) 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 cheque has been presented to the bank
within a period of six months1 from the date on which it is1
Reduced to three months vide RBI circular dated 4.11.2011.
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drawn or within the period of its validity whichever is
earlier;
(iii) that 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) 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 30 days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(v) the drawer of such cheque fails to make
payment of the 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;
If the aforementioned ingredients are satisfied then the
person who has drawn the cheque shall be deemed to
have committed an offence.”
15. At this stage, it is also relevant to discuss the statutory pre-
sumptions provided under section 139 of NI Act. Section
139 of NI Act provides a legal presumption that it shall be
presumed that the holder of the cheque received it in dis-
charge of whole or part of any debt or legal liability. It has
been held by the Hon’ble Supreme court of India in Kumar
Exports Vs. Sharma Carpets, AIR 2009 SUPREME
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COURT 1518 and Bir Singh vs Mukesh Kumar, AIR
2019 SUPREME COURT 2446 that once the signatures
on the cheques are admitted by the accused, the court is
bound to raise presumptions under section 118(a) read with
Section 139 of NI Act, in favour of the complainant, re-
garding the cheque being issued in discharge of a legally
enforceable debt. Section 139 of NI Act provides a reverse
onus clause, where the burden shifts upon the accused to
prove that the cheque in question was not issued in dis-
charge of a legally enforceable debt or liability. However,
the burden cast upon the accused to rebut the presumptions
is only to the extent of preponderance of probabilities and
the burden is not as strict to the extent of beyond reason-
able doubt.
QUESTIONS FOR CONSIDERATION
16. The questions for consideration in the present matter
are as follows:
i. Whether the complainant has been successful in
raising the presumptions under section 139 read
with section 118 of the Negotiable instruments
act?
ii. Whether the accused has been able to
successfully rebut the presumptions by
establishing a probable defence in his favour?
The above points shall be decided in this
judgment separately.
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A. Whether the complainant has been successful in
raising the presumptions under section 139 read
with section 118 of the Negotiable instruments act?
17. In the present case, there is no dispute qua the proof of
first, second and third ingredient. The complainant has
convincingly proved that the impugned cheque dated
09.12.2017 i.e., Ex.CW1/1 was presented well within
validity period of 3 months. Further, the impugned cheques
were dishonoured vide return memo dated on 24.01.2018
i.e., Ex.CW1/2 due to the reason “Funds Insufficient”. The
complainant has further proved the copy of legal demand
Notice Ex. CW1/5 dated 01.02.2018 and postal receipt Ex.
CW-1/6. The complainant has also annexed the tracking
report of the legal demand notice which is annexed as Ex
CW-1/4.
18. It is noteworthy that in his statement under section 313
CrPC, the accused has denied the receipt of legal demand
notice on his address. However, the accused has not
placed on record any evidence in support of his contention
that the legal demand notice was not correctly addressed
to him, or that he never resided at the address mentioned
in the legal demand notice. In fact, the accused has
admitted in his statement under section 313 CrPC and his
statement of defence recorded at the stage of framing of
notice that the address mentioned on the legal demand
notice is his correct address.
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19. Further in the landmark judgement of “C.C. Alavi Haji vs.
Palapetty Muhammed and Ors. (18.05.2007 – SC) :
MANU/SC/2263/200″, the Hon’ble Supreme Court of
India held that:
“16. It is also to be borne in mind that the
requirement of giving of notice is a clear departure
from the rule of Criminal Law, where there is no
stipulation of giving of a notice before filing a
complaint 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 under Section 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 along with the copy of the complaint
under Section 138 of the Act, cannot obviously
contend that there was no proper service of notice as
required under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the
G.C. Act and Section 114 of the Evidence Act.”
In view of the settled position laid down by the Hon’ble
Supreme Court, the contention of accused that he did not
receive legal demand notice is liable to be rejected, as even
after appearing before this court and having notice of the
case, he has not made payment of the cheque amount to the
accused.
20. It is also noteworthy to mention that in his bail bonds, the
accused has mentioned the same address which has been
provided by the complainant in the memo of parties. Futher,
perusal of Ex. CW1/5 shows that the legal demand notice
was sent to the accused on the same address which is
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mentioned in the memo of parties. Therefore, this court has
come to the conclusion that the legal demand notice was
sent by speed post by correctly addressing the accused and a
presumption under section 27 of the General Clauses Act
read with section 114 of the Indian Evidence Act will be
drawn and it shall be deemed that the legal demand notice
was duly served upon the accused.
21. Therefore, the fourth and fifth ingredient have also been
established. All the essential ingredients for raising the
presumption under section 139 and 118 of NI Act, that the
cheque in question was issued in discharge of a legally
enforceable debt thereby stands fulfilled.
B. Whether the accused has been able to successfully
rebut the presumptions by establishing a probable
defence in his favour?
22. Once the presumptions have been raised in favour of the
complainant, it is now to be examined whether the accused
has been able to rebut the presumptions raised against him.
Defence of the accused
23. In the light of the aforesaid provisions and principles of law,
this court will now proceed to examine the defence of the
accused and answer whether the same is a plausible one.
24. The defence of the accused as per his statement recorded at
the stage of framing of notice under section 251 CrPC is
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that he does not owe any liability towards the complainant
in the present case. It is the defence of the accused that it
was not him and rather it was his friend Mr. Naresh Kumar
who had taken a loan from the complainant and he had
given the cheque in question as a guarantee to the
complainant, and it is also the defence of the accused that
his friend Naresh Kumar had already repaid the loan back to
the complainant and still the complainant did not return
back the cheque of the accused and filed the present case
against him. The accused has also stated in his defence that
he does not know the complainant.
25. In order to prove his defence, the accused cross examined
the complainant. Before analyzing the cross-examination of
the complainant, it is relevant to note that in his complaint
and evidence by way of affidavit, the complainant has stated
that the accused is a close friend of the complainant and that
he maintains very friendly and cordial relationship with
him. It has also been mentioned in the complaint that both
the complainant and the accused are on visiting terms with
each other, and when the accused was in dire need of
money, the complainant lent a loan of ₹1,30,000 to the
accused.
26. During the cross examination of the complainant, ld.
Counsel for accused asked several questions from the
complainant regarding the accused like whether the accused
has any siblings or if the complainant has met the parents or
the wife or the children of the accused or if he knows the
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age of the children of the accused. The complainant was
also asked if he knows the name of any family member of
the accused or the description about the number of floors of
the building in which the accused resides. An analysis of the
testimony of the complainant shows that the complainant
was unable give accurate answer to any of the above stated
questions.
27. On one hand, the complainant has stated in his complaint
that the accused was his close friend and on the other hand,
the complainant has not been able to answer very basic
questions about the life of the accused. The complainant has
stated that he had lent a loan of 1,30,000 to the accused
because the accused shared cordial friendly relations with
the complainant. However, because the complainant has
been unable to answer basic questions about the life of the
accused, the very foundation on the basis of which the loan
has been advanced, that is, the friendly relationship between
the parties has been put to question, and a doubt has been
raised on the story put forth by the complainant. Further, the
accused has stated in his defence that he does not know the
complainant and the cross examination of the complainant
supports the version put forth by the accused in the present
case.
28. Further, the complainant has also stated that he does not
have any document to show that he had advanced the
alleged loan to the accused and that no independent witness
was present at the time when the alleged loan was given to
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the accused or in the cheque-in question was handed over to
him.
29. In addition to the cross examination of the complainant, the
accused stepped into the witness box himself in order to
prove his defence. Throughout his testimony, the accused
has maintained his stand that around 2018, his friend Naresh
Kumar had taken loan from the complainant, and at that
time, the accused had given a blank signed cheque to the
complainant as a guarantee. The accused has stated on oath
that he did not borrow any money from the complainant and
that it was his friend, Naresh Kumar, who had taken loan
from the complainant and further, that his friend Naresh
Kumar has already repaid the money back to the
complainant. The accused has also stated that Naresh
Kumar had filed a police complaint against the complainant
because the complainant did not return back the cheque in
question to Naresh Kumar, despite the complete repayment
of his loan. Throughout his examination in chief as well as
cross examination, the accused has maintained his stand that
he does not know the complainant personally and there are
no material contradictions in the testimony of the accused. It
is also noteworthy to mention at this stage that the accused
had taken the same defence at the stage of stating his plea of
defence while framing of notice under section 251 of CrPC
and while recording statement under section 313 of CrPC.
30. Further, the accused examined his friend, Mr Naresh Kumar
as DW-3. DW3 has reiterated the story stated by the
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accused that he had requested loan of ₹50,000 from the
complainant. He has further stated on record that at that
time, the complainant had informed him that he does not
give loan to any person outside Sagarpur and had sought a
witness from Sagarpur along with security cheque. DW-3
has stated that this was the reason why he took help from
the accused and also stated that the accused gave him a
cheque in a blank signed manner. DW3 has further stated
that he repaid the loan back to the complainant in 14
instalments, and when he demanded the cheque of the
accused back from the complainant, the complainant told
him that he is busy. DW-3 has further stated that when the
complainant did not return back the cheque, he filed a police
complaint in PS Sagarpur against the complainant and this
complaint has been exhibited as Ex. DW3/1.
31. After the examination in chief of DW3 was completed, the
complainant was granted multiple opportunities to cross-
examine DW3. However, despite the opportunities, the
complainant sought several adjournments to complete the
cross examination of the witness and subsequently the right
of the complainant to cross examine DW3 was closed by
this court vide order dated 24.08.2024. Further, the
complainant had also filed an application under section 311
of CrPC for recalling DW-3 for his cross examination on
15.10.2024. however, the said application was dismissed for
non-prosecution on 20.03.2025 as the complainant failed to
advance arguments on the said application.
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32. The accused also summoned police witness, HC Ramphool,
who brought DD entry register containing DD entry number
34B which is Ex. DW2/2(OSR) which is entry with respect
to the complaint filed by Mr. Naresh Kumar against the
complainant of the present case.
33. An examination of the testimony of DW1 and DW3 shows
that there are no material contradictions or inconsistencies
in the evidence put forth by both these witnesses. In fact, the
testimonies of both these witnesses corroborate the material
facts stated by both of them individually and further
strengthen the story/defence put forth by the accused in the
present case.
34. An analysis of the complainant’s evidence and his cross-
examination shows that there are inconsistencies in the story
of the complainant. The Negotiable Instruments Act, 1881
provides several presumptions in favour of the complainant.
However, all of these presumptions are rebuttable and the
burden on the accused to rebut the presumptions is only to
the extent of preponderance of probabilities. If the accused
is able to cast a doubt on the story of the complainant by
highlighting the discrepancies in his case, then the burden
shifts on the complainant to prove its case.
35. In view of the above discussion, this court has come to the
conclusion that in the present case, the accused has been
able to create a doubt on the entire story of the complainant
by pointing out the glaring inconsistencies and
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discrepancies in the testimony of the complainant. The case
of the complainant should be complete in itself and should
stand on its own legs. The complainant cannot solely rely on
the statutory presumptions in its favour to prove its case.
Therefore, it can be sufficiently stated that the accused has
been able to rebut the presumptions raised against him and
has shifted the onus upon the shoulders of the complainant
to prove its case. However, the complainant has not placed
on record any material to establish or prove his case beyond
reasonable doubt.
Conclusion
36. Thus, accused has been able to rebut the presumption of
law and discharge the burden of proof by raising a probable
defence that the cheque in question was not issued in
discharge of a legally enforceable liability. Accordingly, in
the present case the benefit of doubt must go to the accused.
The accused Ravi Prakash is acquitted of the offence
punishable u/s 138 NI Act with respect to the cheque in
question.
Announced in open court on 25.07.2025
(SHUBHANGI AGGARWAL)
Judicial Magistrate First Class (NI Act)-07
S/W District, Dwarka Courts, New Delhi/25.07.2025
Certified that this judgment contains 18 pages and each page
bears my signature.
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