Delhi District Court
Mohd. Sharif vs The State Govt. Of N.C.T. Of Delhi on 24 February, 2026
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CA No.:- 213/2023
CNR NO.:- DLWT01-005240-2023
IN THE MATTER OF :-
Mohd. Sharif
S/o Mohd. Shafik,
R/o H.No. 3, Khasra No. 9/21,
Madan Pur Dabas, New Delhi-110086 .... Appellant
VERSUS
1. The State (Govt. of NCT of Delhi)
2. M/s Naini Fincap Limited,
Regd. Office at A-3/316,
Paschim Vihar, New Delhi-110063 .... Respondents
Date of institution of the appeal : 27/06/2023
Date on which judgment was reserved : 28/01/2026
Date of judgment : 24/02/2026
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:03 -0200
CA No. 213/2023 Page No.1/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
JUDGMENT
1. By way of present judgment, this Court shall conscientiously
adjudicate upon criminal appeal under Section 374 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) filed by the appellant
against the judgment dated 23/03/2023 (hereinafter referred to as ‘impugned
judgment’) and order on sentence dated 15/05/2023 (hereinafter referred to as
‘impugned order’) passed by Sh. Vivek Beniwal, Ld. Metropolitan Magistrate (NI
Act), Digital Court-01, West District, Tis Hazari Courts, Delhi in Criminal
Complaint No. 972/2021 under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as “N.I. Act“) titled as ” Naini Fincap Limited V.
Mohd. Sharif “.
In the present appeal, the appellant has prayed to summon and
examine the record of Ld. Trial Court and to admit and set-aside the impugned
judgment dated 23/03/2023 and order on sentence dated 15/05/2023 passed by
the Ld. Trial Court and to acquit the appellant.
2. Appellant has preferred the present appeal against the judgment
dated 23/03/2023 and order on sentence dated 15/05/2023 passed by the Ld. Trial
Court. Vide judgment dated 23/03/2023, the appellant/accused was convicted by
the Ld. Trial Court for the offence u/s. 138 N.I. Act. Vide order on sentence dated
15/05/2023, the appellant/accused was sentenced to undergo simple
imprisonment for the period of five months and he was also sentenced to pay the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:08 -0200
CA No. 213/2023 Page No.2/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
cheque amount alongwith compensation of Rs.1,25,000/- to the complainant.
3. Brief facts necessary for just adjudication of the present appeal as
stated in the present appeal are that the complainant (respondent no.2 herein) had
filed the complaint u/s. 138 N.I. Act against the accused (appellant herein) and
allegations of the complainant are absolutely false, self created and after thought.
In fact, the appellant had taken a loan of Rs.4,00,000/- from the respondent no.2,
out of which, appellant had paid a sum of Rs.2,52,000/- to the respondent no.2
before filing of the present complaint and a sum of Rs.45,000/- was paid to the
respondent no.2 after filing of the complaint. At the time of granting capital
working loan to the appellant, respondent no.2 had taken 33 blank signed
security cheques from the appellant to ensure reimbursement of loan amount.
Due to Covid-19 pandemic and global economic recession, the appellant could
not pay the due installments to the respondent no.2. Despite repeated requests
and demand, respondent no.2 has failed to return the aforesaid blank signed
security cheques to the appellant. For taking wrongful advantage of having
possession of blank signed security cheques, instead of returning the said
cheques to the appellant, the respondent no.2 by filling exorbitant amount of
Rs.4,70,000/- in its name and date in one of the cheques, had presented the same
for encashment with its banker without his prior knowledge or intimation.
Allegations in the complaint are false imputations, insinuations, accusation and
vague. No demand notice was received by the appellant from respondent no.2.
Appellant had regularly paid the EMIs to the respondent no.2 without any default
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:13 –
0200
CA No. 213/2023 Page No.3/34
or delay till February, 2020. However, due to Covid-19 pandemic and global
economic recession, the appellant could not pay some installments to the
respondent no.2 and appellant has shown his inability to pay the due installments
due to aforesaid unforeseen cause and reason, beyond his control and resources.
Delay on the part of the appellant in payment of due installments towards loan
account was not intentional nor willful but on account of aforesaid unforeseen
circumstances beyond his control and resources. Thereafter, the appellant had
approached the respondent no.2 to accept the payment of outstanding EMIs and
to restore the loan account of the appellant to its original number and stage and
undertaken to pay the remaining EMIs well in time, without any delay or default
but the respondent no.2 has refused to accede the just, bonafide and legitimate
request of the appellant and resorted to recover alleged entire outstanding
liability against the appellant including the penal and compound interest accrued
on pending installments imposed due to delay in payment of said installments.
Filing of complaint by the respondent no.2 against the appellant is illegal,
arbitrarily, uncalled for highhandedness and misuse of power and position by the
respondent no.2. Grave prejudice and miscarriage of justice would be done to
the appellant, in case impugned judgment and order on sentence are not set-aside.
Statement of account filed by the respondent no.2 before the Ld. Trial Court is
not correct as respondent no.2 has not credited the actual payments made by the
appellant in his aforesaid loan account. Respondent no.2 has failed to provide
the true and correct statement of account to the appellant. Claim of exorbitant
rate of interest on usurious basis against the appellant is frivolous and
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:17 -0200CA No. 213/2023 Page No.4/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
exaggerated. Respondent no.2 should have waived the interest/penal interest
during lock-down period on humanitarian ground. Appellant apprehends misuse
of remaining blank signed security cheques of the appellant available with the
respondent no.2. Respondent no.2 is a prone litigant, indulge in corrupt, unfair
and malpractices. Respondent no.2 through its agents, scoops and network used
to trap innocent persons for taking loan at exorbitant rate of interest with very
harsh and punitive terms and conditions. Terms and conditions of alleged loan
agreement were got signed from the appellant at the time of granting capital
working loan without allowing him to read and understand the same, hence, same
are not binding on the appellant. Appellant is victim of unfair, corrupt and
malpractice of the respondent no.2. It is apparent and established without any
shade of doubt that as on 15/02/2021, the appellant was not liable to pay alleged
sum of Rs.4,70,000/- to the respondent no.2 as he did not issue cheque in
question to the respondent no.2 in discharge of his legally recoverable debt. On
receipt of summons from the Ld. Trial Court, the appellant had strongly protested
and raised objections for misusing the blank signed security cheque. Appellant
could not cross-examine the complainant because he was not properly
represented by his counsel and for this lapse on the part of the appellant, Ld.
Trial Court has drawn adverse inference against the appellant. Appellant has not
been accorded due and appropriate opportunity of being heard and to cross-
examine the respondent no.2. Admittedly, the respondent no.2 has failed to
examine the witnesses of alleged loan agreement dated 10/09/2018 without any
explanation. Ld. Trial Court has failed to send the cheque in question to the CFSL
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:22 -0200CA No. 213/2023 Page No.5/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
for comparison of handwriting to ascertain the legality, validity and authenticity
of the said cheque. Respondent no.2 has intentionally and deliberately concealed
and suppressed the important and material facts from the Ld. Trial Court. There
are material, important and irreconcilable contradictions in the complaint and
deposition before the Ld. Trial Court. Claim of the complainant is in utter
violation and contravention of its own allegations. It is well settled law that mere
marking of documents as exhibits does not amount that the same stand proved in
accordance with law. Burden of proving the facts is always on the person, who
asserts the facts. In the light of the above evidence, which lacking very material
particulars apart from the material, important and irreconcilable contradictions,
the appellant be acquitted for the offence u/s. 138 N.I. Act. Appellant is innocent,
victim of circumstances and aggrieved person, who has been falsely roped and
foisted in this case with the result of malpractice, corrupt, unfair and dishonest
practice of the respondent no.2, hence, impugned judgment and order on
sentence are liable to be set-aside. Respondent no.2 has filed so many malicious
and malafide prosecution against innocent persons for its wrongful gain.
Appellant is one of the victims of respondent no.2, who has been cheated and
defrauded by the respondent no.2 by forging cheque in question. Orders for
registration of case and payment of damages to the appellant for his malicious
prosecution may kindly be passed. Despite aforesaid facts and circumstances,
Ld. Trial Court has passed the impugned judgment and order on sentence in a
illegal and arbitrary manner.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:27 –
0200
CA No. 213/2023 Page No.6/34
4. Appellant has challenged the impugned judgment and order on
sentence on the grounds, as mentioned in the present appeal.
Grounds of appeal- Impugned judgment and order on sentence are contrary to
law and facts available on record and same are based on conjectures and surmises
without any cogent and plausible evidence. Appellant never issued cheque in
question against any consideration. Respondent no.2 has hopelessly failed to
prove the ingredients of section 138 N.I. Act. There is not even an iota of
evidence available on record to substantiate the allegation of the respondent no.2
that the appellant is legally liable to pay the cheque amount to the respondent
no.2. Ld. Trial Court has erred in giving undue favour and benefits of section
118A and 139 N.I. Act to the respondent no.2. Ld. Trial Court has erred in mis-
interpreting and appreciating the reported judgments relied by the respondent
no.2 and referred by the Ld. Trial Court. Ld. Trial Court has erred in not
appreciating and discussing the reported judgments relied by the appellant, in the
impugned judgment. Ld. Trial Court has erred in holding that the respondent
no.2 has proved the ingredients of section 138 N.I. Act. Ld. Trial Court has erred
in holding that the appellant has failed to substantiate his plea in rebuttal to the
allegations in the complaint despite the fact that appellant has successfully
proved on record the rebuttal to the allegations in the complaint. Despite the
aforesaid facts, circumstances, material, major, irreconcilable and irretrievable
contradictions, latches and lacunas in the case of the respondent no.2 and
disbelieving the just legitimate and bonafide pleas, contentions and defence of
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:32 –
0200
CA No. 213/2023 Page No.7/34
the appellant, Ld. Trial Court has passed the impugned judgment and order on
sentence in a illegal and arbitrary manner. Impugned judgment and order on
sentence are adverse and perverse to the rights and interest of the appellant and
same are miscarriage of justice. Ld. Trial Court has erred in holding that the
appellant has failed to lead any defence evidence and decided the case on the
statement of CW-1 despite the fact that the appellant has given his defence
evidence, however, could not cross-examine the respondent no.2 due to lack of
proper representation by his counsel before the Ld. Trial Court . Ld. Trial Court
has erred in holding that the respondent no.2 had authority to fill and present the
said cheque for encashment. Ld. Trial Court has misinterpreted the provisions of
Section 20 N.I. Act. Sentence awarded by the Ld. Trial Court is severe and
exorbitant beside defective in nature.
5. Before proceeding further, it is relevant to mention here the
proceedings before the Ld. Trial Court.
(i) The complainant M/s Naini Fincap Ltd. had filed the complaint
case u/s. 138 N.I. Act against the accused Mohd. Sharif before the Ld. Trial
Court.
It is mentioned in the complaint u/s. 138 N.I. Act that the
complainant is a finance company duly incorporated under the Companies Act
and complaint has been filed through Sh. Yogesh Yadav, who is authorized
representative vide board resolution dated 17/07/2020. Accused had approached
the complainant company for working capital term loan and loan agreement
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:37 -0200CA No. 213/2023 Page No.8/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
dated 10/09/2018 was executed. Accused had also mortgaged his house property
with the complainant. As per aforesaid agreement, accused had agreed that in the
event of default, he shall be liable to pay the balance of installments together
with other dues/charges and overdue charges, penal charges as well as interest
and fees on the outstanding amount till the date of receipt of payment by the
complainant. Accused took the loan and used the same but he failed to adhere to
the financial discipline of payment of installments and had irregularly paid only
few installments and did not pay all the installments and dues despite service of
repeated reminders, calls and visits. As per statement of account, Rs.4,75,955/-
was due from the accused as on 15/02/2021. On follow up by the complainant
company, accused had issued cheque bearing no. 124151 dated 15/02/2021
amounting to Rs.4,70,000/- drawn on IDBI Bank, Nangloi Branch, Delhi in
favour of the complainant company. Accused had assured the complainant
company that the said cheque was issued by him from his account towards
discharging of his legally enforceable liability of outstanding dues and same
would be honored on its presentation. Thereafter, the complainant had presented
the aforesaid cheque to its banker Kotak Bank, Paschim Vihar, New Delhi for
encashment but the said cheque was returned unpaid with the remarks “Funds
Insufficient” vide bank memo dated 18/02/2021. Thereafter, complainant
company had informed the accused about the fate of the cheque and requested
the accused to make the payment of said cheque amount. Thereafter, the
complainant had sent a legal notice dated 20/02/2021 through its counsel called
upon the accused to make the payment of dishonoured cheque through Regd. AD
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:42 -0200CA No. 213/2023 Page No.9/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
and post on 02/03/2021 and also through whatsapp. The legal notice was duly
served upon the accused on 05/03/2021 but the accused did not make the
payment of dishonoured cheque amount to the complainant.
(ii) Thereafter, the complainant had led pre-summoning evidence by
filing evidence by way of affidavit of its AR Yogesh Yadav, wherein he re-iterated
and re-affirmed the contents of the complaint u/s. 138 N.I. Act.
(iii) Vide order dated 29/09/2021 passed by the Ld. Trial Court, it was
observed that prima-facie case for the offence u/s. 138 N.I. Act is made out
against the accused and summons to the accused were issued.
(iv) Finding a prima-facie case against the accused, notice u/s. 251
Cr.P.C. for the offence u/s 138 N.I. Act was given to him, to which, he pleaded
not guilty and claimed trial.
Vide order dated 10/06/2022 passed by the Ld. Trial Court,
application u/s. 145(2) N.I. Act of the accused was allowed and the matter was
fixed for cross-examination of the complainant.
(v) Complainant in support of its case and in post-summoning
evidence had examined its AR Sh. Yogesh Yadav as CW-1. Complainant/CW-1
in his post-summoning evidence had adopted his pre-summoning evidence.
Accused had not cross-examined the AR of the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:46 -0200
CA No. 213/2023 Page No.10/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
complainant/CW-1 despite opportunities and vide order dated 28/11/2022 passed
by the Ld. Trial Court, right of the accused to cross-examine CW-1 was closed.
Complainant in support of its case had relied upon extract of
board resolution Ex.CW-1/1, working capital term loan application form
Ex.CW-1/2, agreement of hypothecation of movable assets/goods Ex.CW-1/3,
reminders Ex.CW-1/4 (colly.), statement of account Ex.CW-1/5, cheque bearing
No. 124151 dated 15/02/2021 amounting to Rs.4,70,000/- Ex.CW-1/6, returning
memo dated 18/02/2021 Ex.CW-1/7, legal notice dated 20/02/2021 Ex.CW-1/8,
postal receipt Ex.CW-1/9 and postal delivery report Ex.CW-1/10.
(vi) Separate statement of the accused was recorded u/s. 313 r/w
section 281 Cr.P.C. wherein he denied the allegations against him and rebutted
the complainant evidence against him. It was stated by the accused in his
statement that he is not liable to pay the cheque amount to the complainant and
he is liable to pay some amount to the complainant but the complainant has filled
more amount than what was due. It was also stated that he wants to lead defence
evidence.
(vii) Accused had led defence evidence and got examined himself as
DW-1. Appellant/DW-1 in his testimony had deposed almost same facts as stated
by him in his statement u/s 313 r/w section 281 Cr.P.C. DW-1 was cross-
examined by counsel for the complainant.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:51 -
0200
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Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
(viii) Thereafter, final arguments were heard by the Ld. Trial Court.
Vide impugned judgment passed by the Ld. Trial Court, accused was convicted
for the offence u/s. 138 N.I. Act and order on sentence was passed by the Ld.
Trial Court.
6. Vide impugned judgment dated 23/03/2023, the Ld. Trial Court
has convicted the appellant/ accused for the offence u/s. 138 N.I. Act on the
grounds that:-
(a) Accused has admitted his signature and account number with
respect to cheque in question.
(b) Accused has failed to rebut the presumption raised u/s. 139 N.I.
Act that such liability do not exist.
(c) Accused has failed to create a reasonable doubt over the
veracity of story of the complainant.
7. This Court heard the arguments on the present appeal advanced
by Ld. Counsel for the appellant and Ld. Counsel for the respondent no.2.
Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel
for the appellant that the impugned judgment and order on sentence are liable to
be set-aside on the grounds, as mentioned in the present appeal. On the other
hand, it was submitted by Ld. Counsel for the respondent no.2 that the Ld. Trial
Court has passed the impugned judgment and order on sentence in accordance
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:52:55 –
0200
CA No. 213/2023 Page No.12/34
with law and there is no merits in the present appeal and the same is liable to be
dismissed.
8. For the sake of ready reference, section 138 N.I. Act is
reproduced as under:-
Section 138- Dishonour of cheque for insufficiency, etc.,
of funds in the account – Where any cheque drawn by a
person on an account maintained by him with a banker for
payment of any amount of money to another person from
out of that account for the discharge, in whole or in part,
of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing to
the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of this
Act, be punished with imprisonment for a term which may
extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless-
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier.
(b)the payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:00 -0200CA No. 213/2023 Page No.13/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
the said amount of money to the payee or, as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
Explanation. – For the purposes of this section, `debt or
other liability’ means a legally enforceable debt or other
liability.
Ingredients of Section 138 N.I. Act have been specified by the
Hon’ble Supreme Court of India in case titled as “Gimpex Private Limited V.
Manoj Goel” {(2021) SCC Online SC 925} as under:-
“The ingredients of the offence under Section 138 are:
(i) The drawing of a cheque by person on an account maintained
by him with the banker for the payment of any amount of money
to another from that account;
(ii) The cheque being drawn for the discharge in whole or in part
of any debt or other liability;
(iii) Presentation of the cheque to the bank;
(iv) The return of the cheque by the drawee bank as unpaid
either because the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account;
(v) A notice by the payee or the holder in due course making a
demand for the payment of the amount to the drawer of the
cheque within 30 days of the receipt of information from the
bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the
amount of money to the payee or the holder in due course within
15 days of the receipt of the notice”.
The object of N.I. Act has been elaborated by the Hon’ble
Supreme Court of India in case titled as M/s Dalmia Cement (Bharat) Ltd. V.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:04 –
0200
CA No. 213/2023 Page No.14/34
M/s. Galaxy Traders and Agencies Ltd. (2001(1) R.C.R. (Criminal) 646) and it
was held that :-
“The Act was enacted and Section 138 thereof incorporated
with a specified object of making a special provision by
incorporating a strict liability so far as the cheque, a negotiable
instrument, is concerned. The law relating to negotiable
instrument is the law of commercial world legislated to facilitate
the activities in trade and commerce making provision of giving
sanctity to the instruments of credit which could be deemed to
be convertible into money and easily passable from one person
to another. In the absence of such instruments, including a
cheque, the trade and commerce activities, in the present-day
world, are likely to be adversely affected as it is impracticable
for the trading community to carry on with it the bulk of the
currency in force. The negotiable instruments are in fact the
instruments of credit being convertible on account of legality of
being negotiated and are easily passable from one hand to
another. To achieve the objectives of the Act, the legislature has,
in its wisdom, thought it proper to make such provisions in the
Act, for conferring such privileges to the mercantile instruments
contemplated under it and provide special penalties and
procedure in case the obligations under the instruments are not
discharged. The laws relating to the Act are, therefore, required
to be interpreted in the light of the objects intended to be
achieved by it despite there being deviations from the general
law and the procedure provided for the redressal of the
grievances to the litigants. Efforts to defeat the objectives of law
by resorting to innovative measures and methods are to be
discouraged, lest it may affect the commercial and mercantile
activities in a smooth and healthy manner, ultimately affecting
the economy of the country”.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:09 –
0200
CA No. 213/2023 Page No.15/34
It was held by Hon’ble Supreme Court of India in case titled as
“M/s Laxmi Dyechem V. State of Gujarat & Ors.” {(2012) 13 SCC 375} that :-
“Chapter XVII comprising Sections 138 to 142 of the
Negotiable Instruments Act was introduced in the statute by Act
66 of 1988. The object underlying the provision contained in the
said Chapter was aimed at inculcating faith in the efficacy of
banking operations and giving credibility to negotiable
instruments in business and day to day transactions by making
dishonour of such instruments an offence. A negotiable
instrument whether the same is in the form of a promissory note
or a cheque is by its very nature a solemn document that carries
with it not only a representation to the holder in due course of
any such instrument but also a promise that the same shall be
honoured for payment. To that end Section 139 of the Act raises
a statutory presumption that the cheque is issued in discharge of
a lawfully recoverable debt or other liability. This presumption
is no doubt rebuttable at trial but there is no gainsaying that the
same favours the complainant and shifts the burden to the
drawer of the instrument (in case the same is dishonoured) to
prove that the instrument was without any lawful consideration.
It is also noteworthy that Section 138 while making dishonour
of a cheque an offence punishable with imprisonment and fine
also provides for safeguards to protect drawers of such
instruments where dishonour may take place for reasons other
than those arising out of dishonest intentions. It envisages
service of a notice upon the drawer of the instrument calling
upon him to make the payment covered by the cheque and
permits prosecution only after the expiry of the statutory
period and upon failure of the drawer to make the payment
within the said period.”
9. Before proceeding further, it is relevant to discuss the other
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:15 -0200CA No. 213/2023 Page No.16/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
relevant provisions of N.I. Act.
Section 6 N.I. Act has prescribed the definition of cheque and
cheque is Negotiable Instrument within the meaning of section 13 of the Act.
Section 30 N.I. Act talks about the liability of the drawer.
Section 20 N.I. Act talks about inchoate stamped instruments.
Section 87 talks about effect of material alteration of a Negotiable Instrument.
Section 118 N.I. Act talks about presumptions as to negotiable
instruments of consideration, date, time of acceptance, time of transfer, order of
endorsement, stamps and holder in due course.
Section 139 N.I. Act deals with presumption of law in favour of
holder of a cheque. It provides that unless the contrary is proved, it shall be
presumed that the holder of a cheque received the cheque for the discharge, in
whole or in part, of any debt or other liability. It is a rebuttable presumption of
law and the burden of proving that a cheque has not been issued for a debt or
liability is on the accused.
10. CONTENTIONS
(a) It is the contention of the appellant that the cheque in question
bears the signature of the appellant but the amount, party name and date on the
cheque were not filled by him and in view of the same, impugned judgment and
order on sentence are liable to be set-aside.
Section 20 N.I. Act talks about inchoate stamped instruments.
Section 20 N.I. Act provides that where a person delivers a signed but a wholly
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:19 -0200CA No. 213/2023 Page No.17/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
blank or written incomplete negotiable instrument, he is deemed to have given
prima-facie authority to the holder to fill-up the particulars in it or complete it
and this makes him liable for the amount mentioned therein, in the capacity in
which he signed the same, to any holder in due course of such amount. Thus,
blank or incomplete written but signed cheque and filled-up by any other person
is a valid negotiable instrument and prosecution under Section 138 N.I. Act can
be initiated on the basis of such a cheque.
It was held by Hon’ble Supreme Court of India in case titled as ” Bir
Singh V. Mukesh Kumar” {(2019) 4 SCC 197} that:-
“A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular, Sections 20,
87 and 139, makes it amply clear that a person who signs a
cheque and makes it over to the payee remains liable unless he
adduces evidence to rebut the presumption that the cheque had
been issued for payment of a debt or in discharge of a liability.
It is immaterial that the cheque may have been filled in by any
person other than the drawer, if the cheque is duly signed by the
drawer. If the cheque is otherwise valid, the penal provisions
of Section 138 would be attracted.
If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the amount
and other particulars. This in itself would not invalidate the
cheque. The onus would still be on the accused to prove that the
cheque was not in discharge of a debt or liability by adducing
evidence.
It is not the case of the respondent-accused that he either
signed the cheque or parted with it under any threat or coercion.
Nor is it the case of the respondent-accused that the unfilled
signed cheque had been stolen. The existence of a fiduciary
relationship between the payee of a cheque and its drawer,
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:26 -0200CA No. 213/2023 Page No.18/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
would not disentitle the payee to the benefit of the
presumption under Section 139 of the Negotiable Instruments
Act, in the absence of evidence of exercise of undue influence
or coercion. The second question is also answered in the
negative.
Even a blank cheque leaf, voluntarily signed and handed
over by the accused, which is towards some payment, would
attract presumption under Section 139 of the Negotiable
Instruments Act, in the absence of any cogent evidence to
show that the cheque was not issued in discharge of a debt.
The fact that the appellant-complainant might have been
an Income Tax practitioner conversant with knowledge of law
does not make any difference to the law relating to the
dishonour of a cheque. The fact that the loan may not have been
advanced by a cheque or demand draft or a receipt might not
have been obtained would make no difference. In this context, it
would, perhaps, not be out of context to note that the fact that
the respondent-accused should have given or signed blank
cheque to the appellant- complainant, as claimed by the
respondent-accused, shows that initially there was mutual trust
and faith between them.
In the absence of any finding that the cheque in question
was not signed by the respondent-accused or not voluntarily
made over to the payee and in the absence of any evidence with
regard to the circumstances in which a blank signed cheque had
been given to the appellant-complainant, it may reasonably be
presumed that the cheque was filled in by the appellant-
complainant being the payee in the presence of the respondent-
accused being the drawer,at his request and/or with his
acquiescence. The subsequent filling in of an unfilled signed
cheque is not an alteration. There was no change in the amount
of the cheque, its date or the name of the payee. The High Court
ought not to have acquitted the respondent-accused of the
charge under Section 138 of the Negotiable Instruments Act.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:31 –
0200
CA No. 213/2023 Page No.19/34
In our considered opinion, the High Court patently erred
in holding that the burden was on the appellant-complainant to
prove that he had advanced the loan and the blank signed cheque
was given to him in repayment of the same. The finding of the
High Court that the case of the appellant-complainant became
highly doubtful or not beyond reasonable doubt is patently
erroneous for the reasons discussed above.”
It was held by Hon’ble Supreme Court of India in case titled as
“Kalamani Tex & Anr. V. P. Balasubramanian” {(2021) 5 SCC 283} that :-
“……..The Statute mandates that once the signature(s) of an
accused on the cheque/negotiable instrument are established,
then these reverse onus clauses become operative. In such a
situation, the obligation shifts upon the accused to discharge the
presumption imposed upon him…….”.
Appellant/ accused at the time of framing of notice u/s. 251 Cr.P.C.
had stated that the cheque in question bears his signature but amount, party name
and date on the cheque were not filled by him. At the time of framing notice
u/s. 251 Cr.P.C., appellant/accused had admitted his signature on the cheque in
question i.e. Ex.CW-1/6. Appellant/accused/DW-1 in his testimony had admitted
that cheque in question bears his signature. Issuance of cheque Ex.CW-1/6 by the
appellant/accused in favour of the complainant is not disputed. Appellant/accused
has not disputed his signature on the cheque Ex.CW-1/6. In view of the law laid
down in Bir Singh case (supra), it is clear that a person, who signs a cheque and
makes it over to the payee remains liable unless he adduces evidence to rebut the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:35 –
0200
CA No. 213/2023 Page No.20/34
presumption that the cheque had been issued for payment of a debt or in discharge
of a liability. Appellant/ accused had failed to adduce any specific and cogent
evidence to rebut the presumption in this regard.
In the present case, the appellant/ accused had not cross-examined
the AR of the complainant/CW-1. Testimony of AR of the complainant/CW-1 has
gone un-rebutted, un-challenged and un-controverted. Appellant/ accused had not
filed/proved any documentary evidence before the Ld. Trial Court to rebut the
case of the complainant. In view of the same, the contention of the appellant in
this regard is not tenable.
(b) It is the contention of the appellant that the appellant/ accused had
not received the legal notice from the complainant and in view of the same,
impugned judgment and order on sentence are liable to be set-aside.
It was held by Hon’ble Supreme Court of India in case titled as
“C. C. Alavi Haji V. Palapetty Muhammed & Anr.” {(2007) 6 SCC 555} that:-
” It is, thus, trite to say that where the payee dispatches the
notice by registered post with correct address of the drawer of
the cheque, the principle incorporated in Section 27 of the
G.C. Act would be attracted; the requirement of Clause (b) of
proviso to Section 138 of the Act stands complied
with………”
“Section 27 gives rise to a presumption that service of notice has
been effected when it is sent to the correct address by registered
post. In view of the said presumption, when stating that a notice
has been sent by registered post to the address of the drawer, it
is unnecessary to further aver in the complaint that in spite of
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:40 -0200CA No. 213/2023 Page No.21/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
the return of the notice unserved, it is deemed to have been
served or that the addressee is deemed to have knowledge of the
notice. Unless and until the contrary is proved by the addressee,
service of notice is deemed to have been effected at the time at
which the letter would have been delivered in the ordinary
course of business. This Court has already held that when a
notice is sent by registered post and is returned with a postal
endorsement refused or not available in the house or house
locked or shop closed or addressee not in station , due service
has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ;
State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in
view of the presumption available under Section 27 of the Act,
it is not necessary to aver in the complaint under Section 138 of
the Act that service of notice was evaded by the accused or
that the accused had a role to play in the return of the notice
unserved.”
“………..In our opinion, therefore, 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 proviso to Section 138 of the Act stands complied
with………..”
“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
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:45 –
0200
CA No. 213/2023 Page No.22/34
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 our
view, any other interpretation of the proviso would defeat the
very object of the legislation. As observed in Bhaskaran s case
(supra), if the giving of notice in the context of Clause (b) of the
proviso was the same as the receipt of notice a trickster cheque
drawer would get the premium to avoid receiving the notice by
adopting different strategies and escape from legal
consequences of Section 138 of the Act.”
Appellant/accused at the time of framing notice u/s. 251 Cr.P.C.
had stated that he had not received any legal demand notice from the complainant.
Section 27 of General Clauses Act deals with the presumption of service of notice
sent by post and provides that service of such notice shall be deemed to have been
affected unless the contrary is proved. In the legal notice Ex.CW-1/8, three
addresses of the accused have been mentioned and as per postal receipt
Ex.CW-1/9, legal notice was sent at one of the addresses of the accused. It is not
disputed by the appellant/ accused that he was not residing at the said address as
mentioned in the legal notice Ex.CW-1/8 and postal receipt Ex.CW-1/9 on the
date of notice. Appellant/accused in his bail bond furnished before the Ld. Trial
Court, had mentioned one of his address as mentioned in the legal notice
Ex.CW-1/8.
In the present case, the appellant/ accused had not cross-examined
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:49 -0200CA No. 213/2023 Page No.23/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
the AR of the complainant/CW-1. Testimony of AR of the complainant/CW-1 has
gone un-rebutted, un-challenged and un-controverted. Appellant/ accused had not
filed/proved any documentary evidence before the Ld. Trial Court to rebut the
case of the complainant. Appellant/ accused in support of his contention had also
not lead any specific evidence to show that the legal notice Ex.CW-1/8 was not
sent to him. On the other hand, complainant had proved on record Ex.CW-1/8 and
Ex.CW-1/9 to show that the legal notice was sent to the accused. In view of the
same, the legal notice Ex.CW-1/8 is deemed to be served upon the accused.
In view of the law laid down in C. C. Alavi Haji case (supra), the
contention of the appellant in this regard is not tenable.
(c) It is the contention of the appellant that the
complainant/respondent no.2 had misused the cheque in question by filling
exorbitant amount of Rs.4,70,000/- in the cheque and in view of the same,
impugned judgment and order on sentence are liable to be set-aside.
At the time of framing notice u/s. 251 Cr.P.C., appellant/accused
had admitted his signature on the cheque in question i.e. Ex.CW-1/6 and also
admitted that cheque in question was issued from his account.
Appellant/accused/DW-1 in his testimony had admitted that cheque in question
bears his signature. Issuance of cheque Ex.CW-1/6 by the appellant/accused in
favour of the complainant is not disputed. Appellant/accused has not disputed his
signature on the cheque Ex.CW-1/6. At the time of framing notice u/s. 251 Cr.P.C.,
appellant/accused had stated that he is ready and willing to make payment of due
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:54 –
0200
CA No. 213/2023 Page No.24/34
and balance amount. Even, in the present appeal, the appellant has admitted that
he has paid the EMIs till February, 2020 and due to covid-19 pandemic, he could
not pay the due installments.
In the present case, the appellant/ accused had not cross-examined
the AR of the complainant/CW-1. Testimony of AR of the complainant/CW-1 has
gone un-rebutted, un-challenged and un-controverted. Appellant/ accused had not
filed/proved any documentary evidence before the Ld. Trial Court to rebut the
case of the complainant. Appellant/ accused in support of his contention had also
not lead any evidence to show that cheque in question Ex.CW-1/6 was misused
by the complainant. On the other hand, complainant had proved on record
working capital term loan application form Ex.CW-1/2, agreement of
hypothecation of movable assets/goods Ex.CW-1/3, statement of account
Ex.CW-1/5, cheque Ex.CW-1/6 and other documentary evidence. In view of the
same, the contention of the appellant in this regard is not tenable.
(d) It is the contention of the appellant that statement of account filed
by the complainant/respondent no.2 is not correct and in view of the same,
impugned judgment and order on sentence are liable to be set-aside.
In the present case, the appellant/ accused had not cross-examined
the AR of the complainant/CW-1. Testimony of AR of the complainant/CW-1 has
gone un-rebutted, un-challenged and un-controverted. Appellant/ accused had not
led any specific/documentary evidence to rebut the case of the complainant and
to show that the statement of account of the complainant was not correct. On the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:53:59 -0200CA No. 213/2023 Page No.25/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
other hand, complainant had duly proved on record the statement of account
Ex.CW-1/5. In view of the same, the contention of the appellant in this regard is
not tenable.
(e) It is the contention of the appellant that terms and conditions of
alleged loan agreement were got signed from him at the time of granting capital
working loan without allowing him to read and understand the same, hence, same
are not binding on the appellant and in view of the same, impugned judgment and
order on sentence are liable to be set-aside.
Appellant/ accused had not led any specific/documentary evidence
in support of his aforesaid contention. In the present case, the appellant/ accused
had not cross-examined the AR of the complainant/CW-1. Testimony of AR of
the complainant/CW-1 has gone un-rebutted, un-challenged and un-controverted.
On the other hand, complainant had proved on record working capital term loan
application form Ex.CW-1/2, agreement of hypothecation of movable
assets/goods Ex.CW-1/3, statement of account Ex.CW-1/5, cheque Ex.CW-1/6
and other documentary evidence. Appellant/accused has not disputed his
signatures upon Ex.CW-1/2, Ex.CW-1/3 and Ex.CW-1/6. In view of the same,
the contention of the appellant in this regard is not tenable.
(f) It is the contention of the appellant that in the present case, due
and appropriate opportunity of being heard and to cross-examine the respondent
no.2 was not accorded to him and in view of the same, impugned judgment and
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:03 -0200CA No. 213/2023 Page No.26/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
order on sentence are liable to be set-aside.
On perusal of Ld. Trial Court record, it is revealed that proper
opportunity of being heard was granted to the accused/appellant. On 28/11/2022,
neither the accused nor his counsel had appeared before Ld. Trial Court to cross-
examine the AR of the complainant/CW-1 and right of the accused to cross-
examine the complainant witness was closed by the Ld. Trial Court. In view of
the same, the contention of the appellant in this regard is not tenable.
(g) It is the contention of the appellant that the Ld. Trial Court had
picked and chosen evidence available on record as per its convenience for
conviction of the accused/appellant and in view of the same, impugned judgment
and order on sentence are liable to be set-aside. Ld. Trial Court has passed the
detailed and reasoned judgment and all the points and contentions of both the
parties were duly dealt with by the Ld. Trial Court in the impugned judgment. In
view of the same, the contention of the appellant in this regard is not tenable.
(h) It is the contention of the appellant that there are material,
important and irreconcilable contradictions in the complaint and deposition before
the Ld. Trial Court.
It was held by Hon’ble Supreme Court of India in case titled
as “Sunil Kumar Sambhudayal Gupta V. State of Maharashtra” { (2010) 13
SCC 657} that:-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:07 –
0200
CA No. 213/2023 Page No.27/34
” While appreciating the evidence, the court has to
take into consideration whether the contradictions/
omissions had been of such magnitude that they may
materially affect the trial. Minor contradictions,
inconsistencies, embellishments or improvements on
trivial matters without effecting the core of the
prosecution case should not be made a ground to reject
the evidence in its entirety. The Trial Court, after
going through the entire evidence, must form an
opinion about the credibility of the witnesses and the
appellate Court in normal course would not be
justified in reviewing the same again without
justifiable reasons.”
In the present appeal, the appellant has not specified the
contradictions in the complaint and testimony of AR of the complainant/CW-1.
In the present case, the appellant/ accused had not cross-examined the AR of the
complainant/CW-1. Testimony of AR of the complainant/CW-1 has gone un-
rebutted, un-challenged and un-controverted. Hence, the contention of the
appellant in this regard is not tenable.
(i) It is the contention of the appellant that in view of the grounds
mentioned in the present appeal, the appellant/accused had been successful to
rebut the presumption u/s. 118 and 139 N.I. Act.
It is well settled law that the presumptions u/s. 118 and 139 of the
N.I. Act are rebuttable and burden is on the accused to rebut the presumption
which can be discharged by the accused by preponderance of probabilities. It is
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:11 -0200CA No. 213/2023 Page No.28/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
well settled law that presumptions u/s. 118 and 139 of the N.I. Act have to be
rebutted by cogent evidence and mere plausible explanation is not enough.
It was held by Hon’ble Supreme Court of India in case titled as
“Kumar Exports V. Sharma Carpets” {(2009) 2 SCC 513} that:-
” The accused in a trial under Section 138 of the Act has two
options. He can either show that consideration and debt did not
exist or that under the particular circumstances of the case the
non-existence of consideration and debt is so probable that a
prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an accused is not
expected to prove his defence beyond reasonable doubt as is
expected of the complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or liability
to be discharged by him. However, the court need not insist in
every case that the accused should disprove the non- existence
of consideration and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of the
passing of the consideration and existence of debt, apparently
would not serve the purpose of the accused. Something which is
probable has to be brought on record for getting the burden of
proof shifted to the complainant. To disprove the presumptions,
the accused should bring on record such facts and circumstances,
upon consideration of which, the court may either believe that
the consideration and debt did not exist or their non-existence
was so probable that a prudent man would under the
circumstances of the case, act upon the plea that they did not
exist……….”
It was held by Hon’ble Supreme Court of India in case titled as
“Rangappa V. Sri Mohan” {(2010) 11 SCC 441} that:-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:15 -0200CA No. 213/2023 Page No.29/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
” Section 139 of the Act is an example of a reverse onus clause
that has been included in furtherance of the legislative objective
of improving the credibility of negotiable instruments. While
Section 138 of the Act specifies a strong criminal remedy in
relation to the dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay in the
course of litigation. However, it must be remembered that the
offence made punishable by Section 138 can be better described
as a regulatory offence since the bouncing of a cheque is largely
in the nature of a civil wrong whose impact is usually confined
to the private parties involved in commercial transactions. In
such a scenario, the test of proportionality should guide the
construction and interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge an unduly
high standard or proof. In the absence of compelling
justifications, reverse onus clauses usually impose an
evidentiary burden and not a persuasive burden. Keeping this in
view, it is a settled position that when an accused has to rebut
the presumption under Section 139, the standard of proof for
doing so is that of `preponderance of probabilities’. Therefore, if
the accused is able to raise a probable defence which creates
doubts about the existence of a legally enforceable debt or
liability, the prosecution can fail. As clarified in the citations, the
accused can rely on the materials submitted by the
complainant in order to raise such a defence and it is
conceivable that in some cases the accused may not need to
adduce evidence of his/her own.”
In view of the aforesaid discussion in preceding paras, it is clear
that the appellant/accused had failed to rebut the presumption u/s. 118 and 139
N.I. Act. Appellant/ accused had failed to raise any probable defence. In view of
the same, the contention of the appellant in this regard is not tenable. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:20 -0200CA No. 213/2023 Page No.30/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
11. It is well settled law that the Appellate Court will usually not
interfere with the exercise of discretion by the Trial Court and the Appellate Court
will interfere only if it is found that the discretion has been exercised arbitrarily,
capriciously and perversely. The first Appellate Court is required to examine the
case of the appellant with reference to the grounds urged in the appeal.
It was held by Hon’ble Supreme Court of India in case titled as
“Rajan V. State of MP” {(1999) 6 SCC 29} that:-
“Appellate Court’s jurisdiction is co-extensive with that of the
trial Court in the matter of assessment, appraisal and
appreciation of the evidence and also to determine the disputed
issues.”.
12. Accused had led defence evidence and got examined himself as
DW-1. Accused/DW-1 in his testimony had admitted that he is liable to pay some
amount to the complainant. Accused/DW-1 in his testimony had also admitted
that proposal form Ex.CW-1/2, agreement Ex.CW-1/3 and cheque in question
bear his signatures. Factum regarding execution and issuance of cheque
Ex.CW-1/6 was/is also not disputed by the appellant/accused. Appellant/accused
in his statement u/s. 313 read with Section 281 Cr.P.C. had admitted that he is
liable to pay some amount to the complainant. Appellant /accused at the time of
framing notice u/s 251 Cr.P.C. had admitted that the cheque in question bears his
signature and same was issued from his account and he is ready and willing to
make payment of balance and due amount. Hence, appellant/accused has
admitted his liability to pay the balance and due amount. DW-1 in his evidence
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:25 –
0200
CA No. 213/2023 Page No.31/34
had failed to rebut the case of the complainant. Appellant/accused had failed to
rebut the presumption u/s. 118 and 139 N.I. Act. Appellant/ accused had failed
to raise any probable defence.
13. The complainant in its complaint and in the testimony/evidence
by way of affidavit of its AR/CW-1, had categorically, elaborately and
graphically described as to how offence u/s 138 N.I. Act had been committed by
the appellant/accused. Complainant/CW-1 had duly proved on record extract of
board resolution Ex.CW-1/1, working capital term loan application form
Ex.CW-1/2, agreement of hypothecation of movable assets/goods Ex.CW-1/3,
reminders Ex.CW-1/4 (colly.), statement of account Ex.CW-1/5, cheque bearing
No. 124151 dated 15/02/2021 amounting to Rs.4,70,000/- Ex.CW-1/6, returning
memo dated 18/02/2021 Ex.CW-1/7, legal notice dated 20/02/2021 Ex.CW-1/8,
postal receipt Ex.CW-1/9 and postal delivery report Ex.CW-1/10.
In the present case, the appellant/ accused had not cross-examined
the AR of the complainant/CW-1 before the Ld. Trial Court. The testimony of
AR of the complainant/CW-1 has gone un-rebutted, un-challenged and un-
controverted.
In view of the aforesaid discussion, it is clear that the appellant/
accused had failed to raise any probable defence. Appellant/accused had failed
to rebut the presumption u/s. 118 and 139 N.I. Act. On the other hand, the case
of the complainant was duly corroborated by the testimony/evidence by way of
affidavit of its AR/CW-1 and documentary evidence. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:31 –
0200
CA No. 213/2023 Page No.32/34
14. All the points and contentions of both the parties were duly dealt
with by the Ld. Trial Court in the impugned judgment. Ld. Trial Court has rightly
held that the complainant had successfully proved all essential ingredients of
Section 138 N.I. Act. There is nothing on the record to show that the Ld. Trial
Court has exercised its discretion arbitrarily, capriciously and perversely. There
is no illegality, impropriety and infirmity in the impugned judgment and order
on sentence passed by the Ld. Trial Court.
Considering the facts and circumstances of the case, this Court is
of the opinion that sentence and fine/compensation amount awarded by the Ld.
Trial Court are not excessive and the same are reasonable and justified.
15. Applying priori and posteriori reasonings and the aforesaid case
laws, this Court is held that there is no illegality, impropriety and infirmity in the
impugned judgment and order on sentence passed by the Ld. Trial Court.
Impugned judgment dated 23/03/2023 and order on sentence dated 15/05/2023
passed by the Ld. Trial Court are upheld. Accordingly, the present appeal of the
appellant is dismissed. No order as to costs.
Fine/compensation amount awarded by the Ld. Trial Court has
not been paid/deposited by the appellant.
Appellant be taken into custody to serve the sentence awarded by
the Ld. Trial Court. Benefit of Section 428 Cr.P.C. (Section 468 BNSS) be given
to the appellant.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.02.24
16:54:35 -0200
CA No. 213/2023 Page No.33/34
Mohd. Sharif V. The State (Govt. of NCT of Delhi ) & Anr.
Copy of this judgment supplied to the appellant free of cost. Trial
Court Record be sent back alongwith the copy of this judgment.
Appeal file be consigned to record room after due compliance.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR
Announced in the open Court Date:
2026.02.24
on 24/02/2026 16:54:40 -0200
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, Delhi
CA No. 213/2023 Page No.34/34
