Delhi District Court
Dharmbir vs Raj Kumar on 21 February, 2026
IN THE COURT OF MS. BHAWNA RATTAN
Judicial Magistrate First Class (NI Act) - 10
South West District; Dwarka Courts: New Delhi
Date of Institution : 01.11.2008
Date of Reserving Judgment : 28.01.2026
Date of Judgment : 21.02.2026
In the matter of:
Dharmbir Vs. Raj Kumar
1. Regn. No. of Case : Ct. Cases 7922/2015 4988948/2016
2. CNR No. of Case : DLSW020003702014
3. Name of complainant : Dharmbir
S/o Sh. Mani Ram Yadav
R/o D-1 /4, Rajapuri Uttam Nagar,
New Delhi-110015
4. Name of accused : Raj Kumar
S/o Sh. Amar Singh
R/o Vill. Dang Khurt, Tehsil Tosam,
Distt- Bhiwani
Haryana.
5. Offence complained of : Under Section 138 NI Act
6. Offence charged under : 138 NI Act
Section
7. Plea of accused person : Not guilty.
8. Final Order : CONVICTED
Digitally signed
by BHAWNA
BHAWNA RATTAN
RATTAN Date:
2026.02.21
15:20:02 +0530
Ct Case 7922/2015 4988948/2016
Dharmbir Vs. Rajkumar page 1 of 20
JUDGMENT
Vide this judgment, I shall dispose of the complaint filed by the
complainant under section 138 of the Negotiable Instruments Act, 1881.
(Note: The present case was received by way of transfer after the amendment in
the act in the year 2015, from the District Court, Bhiwani, Haryana and was
previously instituted there.)
FACTS OF THE COMPLAINT
1. The complainant and the accused entered into a partnership business of
transportation in the name and style of Anmol Bus Services and
complainant invested huge money in the said business. However, later
due to some differences between the complainant and the accused the
said partnership was dissolved and vide agreement executed between the
complainant and the accused, the accused issued eight post-dated cheques
to the complainant in discharge of the legal liability i.e. the amount
invested by the complainant in the said business.
2. The complainant when presented the two post-dated cheques out of the
eight post-dated cheques for encashment, the same were returned
dishonoured and the complainant informed the accused about the said fact
and the accused then requested the complainant to present the same
cheques again with further assurance that the same will be honoured.
However, again when the said cheques were presented for encashment,
they were returned dishonoured with the remarks “insufficient funds” and
the same are the subject matter of the present case.
3. Thereafter the complainant sent a legal demand notice to the accused
demanding the payment of the cheque amount but despite the service of the
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
RATTAN 2026.02.21
Ct Case 7922/2015 4988948/2016 15:20:10
+0530
Dharmbir Vs. Rajkumar page 2 of 20
legal demand notice the accused failed to make the payment and thus the
present complaint.
PRE SUMMONING EVIDENCE
4. At the stage of pre-summoning evidence, the complainant relied upon the
following documents:
i. Two original cheques in question Ex CW1/A, Ex CW1/B.
ii. Return memos Ex CW1/C, Ex CW1/D.
iii. Certified copy of pass book Ex CW1/E.
iv. Copy of legal demand notice Ex CW1/F.
v. Postal receipts Ex CW1/G.
vi. Complaint Ex CW1/H.
vii. Agreement Ex CW1/I.
5. After the PSE is led, the summoning of the accused is done if there is
sufficient material on record in terms of the ingredients of the offence.
i.e. once the complaint prima facie reveals that there is sufficient material
on record to summon the accused, then the accused is summoned. The
summoning order was done on 29.04.2016.
APPEARANCE OF THE ACCUSED
6. For securing the appearance of the accused, summons issued. Thereafter
the bailable warrants was issued, non bailable warrants was issued but
they remain unexecuted as the family members of the accused refused to
accept the service and ultimately the accused were informed about the
present case on the phone through his contact number and after receiving
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
Ct Case 7922/2015 4988948/2016 RATTAN 2026.02.21
15:20:15
Dharmbir Vs. Rajkumar +0530 page 3 of 20
the said report, the court initiated the proceedings under section 82 CrPC
against the accused. The proceedings under section 82 CrPC received
back duly executed and the matter fixed for recording the statement of the
process server. Then on subsequent date, the accused entered into
appearance and the application was moved for the cancellation of the
proceedings under section 82 of CrPC. The court cancelled the process
under section 82 CrPC subject to cost of Rs4000/-, considering the fact
that the statement of the process server was yet to be recorded and the
matter then fixed for framing of notice.
NOTICE FRAMING
7. Notice under section 251 of the code of criminal procedure (CrPC) was
framed on 25.04.2023 and the same was read over and explained to the
accused and he was asked to make his plea of defence to which he stated;
The complainant has misused my cheques and falsely implicated me as I have
paid the entire amount as per the agreement and cheque in question also. I have
no liability towards the complainant. The complainant may be directed to
produce original agreement on record.
I have given blank signed cheques as per agreement. Other particulars are not
filled by me.
8. Accused further stated that he did not receive the legal demand notice nor
the same bears his address as the accused never resided at Rajapuri.
COMPLAINANT EVIDENCE
9. To prove his case the complainant got himself examined as CW1, and
reiterated the version of the complaint and relied upon the pre
Digitally signed
by BHAWNA
Ct Case 7922/2015 4988948/2016 BHAWNA RATTAN
Dharmbir Vs. Rajkumar RATTAN Date:
2026.02.21 page 4 of 20
15:20:20 +0530
summoning evidence affidavit Ex CW1/X and also relied upon the
following documents;
(i) Two original cheques in question Ex CW1/A, Ex CW1/B.
(ii) Two return memos Ex CW1/C, Ex CW1/D.
(iii) Certified copy of pass book Ex CW1/E.
(iv) Copy of legal demand notice Ex CW1/F.
(v) Postal receipts Ex CW1/G.
(vi) Complaint Ex CW1/H.
(vii) Agreement Ex CW1/I.
STAGE OF CROSS EXAMINATION
10. For the purpose of cross examination, it is pertinent to mention the
provision under section 145 (2) of the Negotiable Instruments, Act 1881;
The court may, if it thinks fit, and shall, on the application of the prosecution or
the accused, summon and examine any person giving evidence on affidavit as to
the facts contained therein.
11. In the present matter, the application under section 145 (2) of the
Negotiable Instruments Act, 1881 was filed on the behalf of the accused
and the court considering the defence stated by the accused, allowed the
application of the accused to cross examine the complainant.
12. Thereafter the complainant i.e. CW1 was examined in chief, cross
examined on 27.06.2024 and was discharged. The complainant did not
examine any other witness in CE and vide separate statement closed CE.
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
RATTAN 2026.02.21
15:20:24
Ct Case 7922/2015 4988948/2016 +0530
Dharmbir Vs. Rajkumar page 5 of 20
RECORDING OF STATEMENT OF ACCUSED UNDER SECTION 313 of
CrPC
13. At the stage of recording of statement of the accused under section 313
of CrPC all the incriminating circumstances/evidences are put to the
accused so as to give him an opportunity to explain the same. The
statement of the accused was recorded on 20.07.2024.
14.The accused at the time of recording of statement under section 313 of
CrPC, stated as follows;
It is correct that we entered into a partnership of transportation business and the said
partnership was dissolved. Agreement Ex CW1/I bears my signature but the original
agreement is concealed by complainant which bears my signature.
The cheques in issue bears my signature, however, the other details have not been
filled by me.
I did not receive any legal notice regarding the cheques in question however the same
bears my correct address.
I gave eight cheques to the complainant at the time of dissolution of partnership. I
already paid Rs 5,00,000/- to complainant and complainant returned five of my
cheques. Three cheques is still with complainant. Therefore I also paid the remaining
sum of Rs 3,70,000/- to complainant but he did not return my cheques stating that he
would return the same. I believed him since he belong to my village. The receiving of
complainant is on the original agreement which complainant has concealed. I have no
liability towards the complainant.
DEFENCE EVIDENCE
15. At the time of recording of statement of the accused under section 313 of
CrPC, the accused wished to lead the defence evidence (DE) and
Digitally signed
by BHAWNA
BHAWNA RATTAN
Ct Case 7922/2015 4988948/2016 RATTAN Date:
2026.02.21
Dharmbir Vs. Rajkumar 15:20:28 +0530 page 6 of 20
accordingly moved an application under section 315 of CrPC which was
allowed and thereafter, the accused entered into witness box for the
purpose of defence. The testimony of DW1 i.e. examination in chief was
recorded on 12.07.2025. Thereafter on 06.09.2025 DW1 was cross
examined and discharged. The accused did not examine any other witness
in DE and vide separate statement closed his DE the very same day.
FINAL ARGUMENTS
16.In the final arguments, the complainant reiterated his entire case, that
there was partnership between the complainant and the accused in
transportation business but the said partnership was dissolved vide an
agreement and in pursuance of the said agreement the accused issued
eight post dated cheques to the complainant and the present case is
regarding two of the cheques among those eight cheques, and the said
two cheques were dishonoured for insufficient funds. Thereafter the legal
demand notice was sent to the accused asking the demand of the said
dishonoured cheques. However, the accused failed to make the payment
despite the service of the notice and the present case was filed.
17.While on the other hand, accused had refuted all the claims of the
complainant. Accused though admitted that the said partnership was
dissolved vide an agreement and the accused had a legal liability of Rs
8,70,000/- towards the complainant and also issued eight post-dated
cheques to the complainant in discharge of the liability, however, denied
the fact of any remaining/pending liability towards the complainant. Ld.
Counsel for the accused had specifically argued that the accused had
already made the entire payment of Rs 8,70,000/- to the complainant and
qua the cheques in question, the payment was made in cash by the
Digitally signed
by BHAWNA
RATTAN
BHAWNA
Ct Case 7922/2015 4988948/2016 RATTAN
Date:
2026.02.21
Dharmbir Vs. Rajkumar 15:20:33
+0530 page 7 of 20
accused but the complainant did not return the cheques to the accused and
had only misused those cheques by filing the present case.
18.Ld. Counsel had also argued that after the dishonour of cheques the legal
demand notice was sent after the expiry of the limitation period and also
the same was sent on the wrong address due to which no legal demand
notice was ever received by the accused.
19.Written submissions filed only on behalf of both the parties, which are
duly perused.
APPRECIATION OF EVIDENCE
20. Under section 138 of Negotiable Instruments Act 1881(hereinafter
referred as Act), to held any person liable for the offence the following
are the essential ingredients:
a) the cheque has been presented to the bank within a period of [six
months] 1 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
_____________
1. Vide RBI Noti No. RBI/2011-12/251, DBOD.AML BC No. 47/14.01.001/2011-12, dated 4-11-2011, w.e.f. 01-4-2012, the period of ‘six
months’ has been reduced to ‘three months’.
Digitally
signed by
BHAWNA
BHAWNA RATTAN
RATTAN Date:
2026.02.21
15:20:38
+0530
Ct Case 7922/2015 4988948/2016
Dharmbir Vs. Rajkumar page 8 of 20
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.
21. In the present matter, the cheques in question (cheques) are dated
02.02.2008 and 01.03.2008 and the same when presented for encashment,
were dishonoured vide return memos dated 04.08.2008 and 25.08.2008
respectively which means the same were presented within the statutory
period of six months from the date on which they were drawn. Thereafter
the complainant sent the legal demand notice to the accused for the
demand of the payment of both the cheques and the same was sent on
16.09.2008. Now at this stage, it is pertinent to mention that qua both the
cheques the limitation period for sending the legal demand notice was
different.
22.The cheque dated 02.02.2008 was returned dishonoured vide return
memo dated 04.08.2008 and the statutory period of 30 days for sending
the legal demand notice started on 05.08.2008 and it ended on
03.09.2008. However, the complainant had sent the legal demand notice
only on 16.09.2008 which means the same was not sent within the
statutory period of 30 days from the receipt of return memo dated
04.08.2008. Thus, the complainant has filed on record copy of pass book
of his bank account Ex CW1/E, at the stage of pre-summoning evidence,
to show that he was informed belatedly by the bank regarding the return
of cheque dated 02.02.2008 bearing no. 863044.
23.Since Ex CW1/E, reflects the entry of the return of cheque dated
02.02.2008 bearing no. 863044 with remarks “RETD OUT OF DATE”.
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
Ct Case 7922/2015 4988948/2016 RATTAN 2026.02.21
15:20:42
Dharmbir Vs. Rajkumar +0530
page 9 of 20
But the return memo filed on record for cheque dated 02.02.2008 is dated
04.08.2008, to which it was asserted by the complainant that he presented
the cheque bearing no. 860344 on time i.e. within the limitation period of
six months from the date when it was drawn. Thus, the accused was
asked to furnish on record his bank account by the court in order to check
when the cheque bearing no. 860344 was presented in the account of the
accused for encashment.
24.The accused thus filed on record duly stamped and signed his bank
account which reflected one entry dated 04.08.2008 bearing cheque no.
863044 and the same was returned unpaid. The complainant, during the
course of the trial, also filed an application under section 311 of CrPC
wherein a bank witness was summoned to furnish on record the bank
account statement of the complainant to show that when the cheque
bearing no. 863044 was presented by the complainant for encashment and
it was on 22.07.2008, which was then return unpaid by entry dated
03.09.2008 with remarks “out of date”.
25.The bank witness further endorsed the fact that in previous time i.e. at
relevant time in 2008, the cheque and return memo used to be
communicated with different banks through postal communication and
the banking system was not upgraded as it is today. Therefore, after
considering the entire factual matrix and documentary proof summoned
from the bank and sought from the accused, it can be said that the
complainant was informed regarding the fact of dishonoured cheque on
03.09.2008 only.
26.Hence, the legal demand notice which was sent on 16.09.2008 will be
deemed to be sent within statutory period of thirty days from the receipt
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
Ct Case 7922/2015 4988948/2016 RATTAN 2026.02.21
15:20:47
Dharmbir Vs. Rajkumar +0530 page 10 of 20
of the information received regarding the dishonour of cheque dated
02.02.2008 bearing no. 863044.
27.The other cheque is dated 01.03.2008 and the same was returned
dishonoured vide return memo dated 25.08.2008 and the legal demand
notice was sent on 16.09.2008 i.e. within statutory period of thirty days
from the receipt of the information received regarding the dishonour of
cheque.
28. The accused at the time of framing of notice stated that he did not
receive the legal demand notice and also stated that the address
mentioned on the legal demand notice was not his address. However, at
the time of recording of statement under section 313 of CrPC the accused
had stated that he did not receive the legal demand notice and the address
mentioned on the same is his correct address. Thus, the accused made two
contradictory statements at the different stages of the trial and certainly
more weightage be given to the statement recorded under section 313 of
CrPC.
29.Hence, in that regard, it is relevant to mention the judgment of the
Hon’ble Supreme Court, titled as ‘C. C. Alavi Haji vs Palapetty
Muhammed‘ reported as (2007) 6 SCC 555;
“13. According to Section 114 of the Act, read with Illustration (f)
thereunder, when it appears to the Court that the common course of business
renders it probable that a thing would happen, the Court may draw presumption
that the thing would have happened, unless there are circumstances in a
particular case to show that the common course of business was not followed.
Thus, Section 114 enables the Court to presume the existence of any fact which
it thinks likely to have happened, regard being had to the common course of
Digitally signed
by BHAWNA
RATTAN
BHAWNA
Ct Case 7922/2015 4988948/2016 RATTAN
Date:
2026.02.21
Dharmbir Vs. Rajkumar 15:20:52
+0530
page 11 of 20
natural events, human conduct and public and private business in their relation
to the facts of the particular case. Consequently, the court can presume that the
common course of business has been followed in particular cases. When
applied to communications sent by post, Section 114 enables the Court to
presume that in the common course of natural events, the communication would
have been delivered at the address of the addressee. But the presumption that is
raised under Section 27 of the G.C. Act is a far stronger presumption. Further,
while Section 114 of Evidence Act refers to a general presumption, Section 27
refers to a specific presumption. (Emphasis supplied.)“17 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
complaint under Section 138 of the Act, make the payment of the cheque
amount and submit to the court that he had made the payment within 15 days of
the receipt of summons (by receiving a copy of complaint with the summons)
and, therefore, the complainant is liable to be rejected. A person who does not
pay within 15 days of receipt of summons from the court alongwith the copy of
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 General Clauses Act
and 114 of the Evidence Act.” (Emphasis supplied)Further the Hon’ble Supreme Court held, once a notice is dispatched by
registered post with the correct address, a presumption of service arises under
section 27 of the General Clauses Act and under section 114 of the Indian
Evidence Act.
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
RATTAN 2026.02.21
Ct Case 7922/2015 4988948/2016 15:21:00
+0530
Dharmbir Vs. Rajkumar page 12 of 20
30.Now, in the present matter, accused had given contradictory statements.
While on the other side, as per the judgment of the Hon’ble Supreme
Court, the presumption will be raised and the said presumption is strong
presumption in the favour of the complainant. Therefore, it can be
presumed that the accused received the legal demand notice but despite
the receipt of the same, the accused failed to make the payment. Also, as
laid down by the Apex Court that even after receipt of the summons the
accused can enter into appearance and take the necessary steps. Hence the
third ingredient is also established by the complainant.
31.Now, further in section 138 of the act, if the accused admits the fact that
he has signed the cheque in question, and also that the same was handed
over to the complainant, then the presumption under section 139 of the
act, r/w section 118(a) of the act, arises.
Section 139 Presumption in favour of holder;
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.
Section 118 Presumptions as to negotiable instruments;
(a) of consideration – that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration.
32. Now, as per the mandate of the law, when the accused admits that he
signed the cheque and executed in the favour of the complainant, then it
is presumed that the same was given for a legally enforceable debt and
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
Ct Case 7922/2015 4988948/2016 RATTAN 2026.02.21
15:21:07
Dharmbir Vs. Rajkumar +0530 page 13 of 20
presumption of the same lies in the favour of the complainant and to rebut
the same presumption the burden of proof lies on the accused.
33.Now, in the present case, the accused had admitted his signatures on
cheque and also the fact that he owe legal liability towards the
complainant after the dissolution of the partnership between him and the
complainant. However, the accused disputed that the legal liability had
already been discharged by him and nothing is due to the complainant.
34.Now, nonetheless the accused had disputed his liability, but since the
accused had admitted that the cheques bear his signatures, the
presumption will be raised and lie in the favour of the complainant and
the burden accordingly, shifts to the accused to discharge the said
presumption. The accused can discharge the same, by either shaking the
credit of the complainant’s case or by bringing on record his own
evidence which must be sufficient enough to rebut the presumption.
35. In the present matter, during the examination in chief, the complainant
i.e. CW1, reiterated his case as CW1 and adopted the pre-summoning
evidence affidavit in post summoning evidence by way of examination in
chief and relied upon all the documents tendered at the stage of pre
summoning evidence.
36.Now since the burden has already been shifted to the accused after the
presumption, the stage of cross examination of the complainant is first
opportunity to shift back the onus of proof onto the complainant. During
the cross examination, CW1 stated that the accused and the complainant
entered into a partnership in the business of busses (transportation) and
after some time the said partnership was dissolved and in pursuance of
the dissolution deed the accused executed an agreement and issued 8
Digitally signed
by BHAWNA
BHAWNA RATTAN
Ct Case 7922/2015 4988948/2016
RATTAN Date:
Dharmbir Vs. Rajkumar 2026.02.21
15:21:12 +0530
page 14 of 20
post-dated cheques to the complainant towards the payment of Rs
8,70,000/-, the amount which was an investment made by the
complainant at the time of starting the business. All the said facts are also
not disputed by the accused and thus is can be believed that the accused
owe legal liability towards the complainant.
37.The dispute had only arisen to an extent that according to the accused he
had made entire payment of Rs 8,70,000/- to the complainant, however
the complainant has a different claim, that is when the cheques in
question were presented for encashment towards the partial discharge of
the liability then they were returned dishonoured. CW1 has also placed on
record the copy of agreement dated 01.10.2017 which was executed
between the complainant and the accused vide which the complainant and
the accused dissolved their partnership and 8 post-dated cheques were
given to the accused. The original is not filed as the same has been filed
in the Bhiwani Court wherein one case under section 138 of the Act was
adjudicated between the present parties.
38.Now it is pertinent to mention that the execution of the said
document/agreement is not disputed by either party. However, at this
stage it is apposite to reproduce one of the terms of the said agreement i.e.
Ex CW1/I,
2. That the second party (complainant) has agreed to return to the first
party (accused) above cheque (which includes cheque in question) if the
payment made in cash by the first party to the second party.
Now, the moot question is whether any payment in cash was made by the
accused to the complainant against the present cheques.
Digitally
signed by
BHAWNA
BHAWNA RATTAN
RATTAN Date:
2026.02.21
Ct Case 7922/2015 4988948/2016 15:21:16
+0530
Dharmbir Vs. Rajkumar page 15 of 20
39.In this regard, further, will reproduce the relevant cross examination of
the CW1;
“Accused used to pay me in cash and used to take back the cheques from
me. Likewise, accused paid me Rs 1 lac in cash for five months and took
back cheque of Rs 1 lac each every month after payment.
After seeing the agreement, the witness replied that cheque no. 863046,
863047, 863048, 863049 & 863050 were taken back by accused after such
payment.”
Thus, at this stage it is appropriate to note that as per the defence of the
accused, qua the cheques in question, that the accused had made the payment
to the complainant in cash but despite the payment the complainant did not
return the cheques, is little unreasonable to believe when otherwise for the
remaining cheques (supra), the complainant returned the cheques then what
would have prompted the complainant to not return the present cheques or
why the complainant not choose to kept more cheques of the accused.
40.CW1 also denied some suggestions made at the stage of cross
examination i.e. that the complainant used to tick the cheque no. and also
give receiving on the agreement as and when the payment qua the said
cheque was made by the accused. Also, the complainant denied the
suggestions put during the cross examination of CW1 which was related
to the defence of the accused.
41.Now, this was the only cross examination done of the complainant. Now
after reading and appreciating the same, I do not find that the
presumption has in any way been discharged or the onus has shifted back
to the complainant. Therefore, next opportunity be given to the accused
by way of tendering his own evidence to discharge the said presumption.
Digitally signed
by BHAWNA
BHAWNA RATTAN
Ct Case 7922/2015 4988948/2016 RATTAN Date:
Dharmbir Vs. Rajkumar 2026.02.21
15:21:21 +0530 page 16 of 20
42.At the stage of the defence evidence (DE), the accused himself entered
into the witness box as DW1 to tender his evidence, followed by the cross
examination of DW1. During the examination in chief, DW1 stated that
he and the complainant entered into a partnership which was dissolved
and they entered into an agreement and vide that agreement the accused
has to pay Rs 8,70,000/- to the complainant. The certified copy of the
agreement is exhibited as Ex DW-1/1 (the copy of the said agreement is
already exhibited as Ex CW1/I.)
43.DW1 further stated that according to the agreement, the first instalment
was for an amount Rs 1,70,000/- and the remaining instalments was for
Rs 1,00,000/- each and when the first instalment was made by the
accused to the complainant in cash then the complainant had marked a
tick on the said agreement as receipt of first instalment. Thereafter the
accused paid the entire payment as per the agreement in cash but the
complainant refused to return my cheques and the agreement on one
pretext or other.
44.Now at this stage, if the testimony of DW1 is to believed, on its face
value then it’s not comprehensible that why the complainant did not
present for encashment all the eight cheques or other cheques of the
accused and what compelled the complainant to present only two cheques
which are the subject matter of present case. While on the other hand, the
complainant had stated in his testimony at the time of cross examination
that when the accused made payment in cash against some cheques, the
same were returned back to the accused as per the agreement. So, if those
cheques were returned and duly received by the accused after the
payment in cash then what could had stopped the accused to take back the
present cheques against which the accused made payment in cash.
Digitally signed
by BHAWNA
Ct Case 7922/2015 4988948/2016 BHAWNA RATTAN
RATTAN Date:
Dharmbir Vs. Rajkumar 2026.02.21
15:21:26 +0530
page 17 of 20
45.Further, even otherwise, let it be believed for once that the complainant
refused to return the cheques on one pretext or other, then whether the
accused as a prudent person took any steps as in filing of complaint or
any other step in order to ensure that his cheques may not be misused by
the complainant. Therefore, the testimony of the accused has failed to
inspire the confidence of the court and thus, not sufficient to raise a
probable defence.
46.Thereafter during the cross examination, DW1 divulged some other
relevant facts and will reproduce the relevant cross examination of the
DW1;
It is correct that cheque no. 863052 dated 01.09.2008 for Rs 1,00,000/-
mentioned in the document Ex DW1/1 was got dishonoured and
complaint under section 138 NI Act was filed by the complainant before
the Hon’ble concerned Magistrate Court, Bhiwani. It is also correct that
judgment dated 11.06.2015 was passed in Crl. Case no. 92/2009 by Ms.
Sonia, JMIC, Bhiwani and same is already exhibited Ex CW1/J against
me. It is correct that during the appeal against the said judgment I settled
with the complainant for a sum of Rs 1,50,000/- which was paid before
the Hon’ble Sessions Court, Bhiwani.
At this stage, document Ex DW1/1 is shown to the witness and
confronted with the same that there is no tick mark over the first
instalment vide cheque no. 860344 amounting to Rs 1,70,000/- dated
02.02.2008 and witness duly admitted the same.
Therefore, the other line of defence taken by the accused that the
complainant used to mark a tick at the time when a payment is being
made by the accused in cash against a cheque, again is not enough to
Digitally signed
by BHAWNA
RATTAN
BHAWNA
Ct Case 7922/2015 4988948/2016 RATTAN
Date:
2026.02.21
Dharmbir Vs. Rajkumar 15:21:32
+0530 page 18 of 20
demolish the case of the complainant and raise a probable defence for the
purpose of shifting the onus back to the complainant to further prove his
case beyond reasonable doubt. And moreover, even if it could had been
the situation that the complainant used to mark a tick against the payment
received in cash then what stopped the accused to ask the complainant to
mark a tick against the above said cheque, for which the accused alleged
that he had already made payment in cash.
47.Now, other than the oral testimony, the accused did not furnish on record
any other cogent piece of evidence, neither oral nor documentary to show
and prove his defence. Thus, in the absence of any cogent evidence it
cannot be said that the presumption has been discharged even by
preponderance of probabilities. The accused has to bring on record such
evidence to prove that the consideration and debt either not existed or the
nonexistence is so probable that prudent man under the circumstances of
the case, believe that the same did not exist.
48. It is worth mentioning, the accused has not brought on record any such
probable defence in order to prove that he had already made payment in
cash against the cheques and the complainant only misused the cheques.
49.Therefore, at this stage, it can be said that, it will be utter disregard to the
established principle of law, if the court only relies on the oral
explanation or answer given by the accused during notice framing,
recording of the statement and the submissions made at the time of final
arguments, when it is otherwise devoid of any documentary evidence to
concrete the same. The version of the accused, in the absence of any
credible evidence, cannot be taken as gospel truth for the purpose of
discharging his burden even by preponderance of probabilities.
Digitally signed
by BHAWNA
RATTAN
BHAWNA Date:
RATTAN 2026.02.21
Ct Case 7922/2015 4988948/2016 15:21:36
+0530
Dharmbir Vs. Rajkumar page 19 of 20
50. Hence, considering the weight of the attending circumstances viz, the
consistency in the complainant case, and the failure of the accused to put
forth any reasonable and believable defence, admission of the accused
that signature on the cheques in question belongs to him and fact that the
accused has not proved his defence to cause the probabilities to lie in his
favour, the essential elements of section 138 of the Act stands attracted.
51. Finally, having considered the totality of the facts and the circumstances
of the case, the accused has failed to rebut the presumption in favour of
the complainant as spelled under section 139 of the Act. The law as laid
down under section 138 of the Act is made out against the accused. The
weight of the evidence adduced by the complainant to prove his case
against the accused is sufficient enough to impute criminality on the
accused. Complainant has successfully proved all the essential
ingredients of section 138 of the Act.
52.Therefore, accused Raj Kumar is held guilty and convicted for
commission of offence punishable under section 138 of the Act.
53. Let the convict be heard on the quantum of sentence separately.
54. Let the copy of this judgment be given to the convict free of cost.
Digitally signed
by BHAWNA
Announced in open court BHAWNA RATTAN
Date:
RATTAN 2026.02.21
on 21st of February 2026 15:21:44
+0530
(Bhawna Rattan)
Judicial Magistrate First Class
(NI Act)-10; South West
Dwarka Courts, New Delhi
21.02.2026
Ct Case 7922/2015 4988948/2016
Dharmbir Vs. Rajkumar page 20 of 20
