Santosh Kumari vs Robin Singh on 1 April, 2026

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    Delhi District Court

    Santosh Kumari vs Robin Singh on 1 April, 2026

                Santosh Kumari vs Robin Singh
    
    
                              IN THE COURT OF SH. ASHISH RASTOGI
                               ADDITIONAL SESSIONS JUDGE- 05
                              EAST, KARKARDOOMA COURTS, DELHI
    
                                                                        CA No.178/2025
    
                Santosh Kumari
                (through her SPA Atul Vijaywargi)
                W/o late Sh. Naresh Kumar
                R/o D-202, Milan Vihar-1,
                Abhay Khand-3, Indirapuram,
                Ghaziabad, UP-201014, UP
                                                                           .... Appellant
                                        Vs.
                Robin Singh
                S/o Sh. Om Pal Singh
                R/o B-19, West Jawahar Nagar,
                Loni Dehat,
                Ghaziabad, UP-201101
                                                                         .... Respondent
    
                                 Date of Institution : 28.07.2025
                                 Arguments heard : 08.01.2026
                                 Date of order       : 01.04.2026
    
                 JUDGMENT
    

    1. This is an appeal U/s 413 BNSS filed against the Judgment
    and impugned order dated 28.06.2025 passed by Ld. JMFC
    (NI Act)-04/South-Saket, New Delhi in CT Case
    No.1558/2021 titled as ‘Santosh Kumari through her SPA
    vs Robin Singh’ vide which the accused/respondent was
    acquitted of the offence U/s 138 of NI Act.

    Factual Matrix

    SPONSORED

    2. The case in brief of the complainant/appellant is that in
    Digitally August 2018, accused/respondent approached the
    signed by
    Ashish
    Ashish Rastogi
    complainant and requested her to advance loan of Rs.7
    Rastogi Date:

    2026.04.01
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    Santosh Kumari vs Robin Singh

    lakhs to him. Upon request of accused, complainant gave a
    friendly loan of Rs.7 lakhs in installments mentioned
    below:

                                   Sl. No. Amount           Date
                                   1       2,00,000/-       27.08.2018
                                   2       1,00,000/-       26.10.2018
                                   3       2,00,000/-       14.11.2018
                                   4       2,00,000/-       02.02.2018
    
    
    

    3. The respondent/accused promised to return the said mount
    latest by March 2021. It is further mentioned that the
    accused returned an amount of Rs.4,99,600/- to the
    complainant from 18.05.2020 to 01.06.2020 through
    OnLine transfer. It is further alleged that in the second
    week of July, 2020, accused visited the house of
    complainant and paid Rs.400/- in cash to her and also
    issued a post dated cheque bearing No.060955 dated
    13.03.2021 for an amount of Rs.2 lakhs drawn on Yes
    Bank, New Friends Colony, New Delhi (the cheque in
    question).

    4. It is alleged that on presentation, the said cheque got
    dishonoured and returned unpaid vide returning memo
    dated 16.04.2021 with remarks “Funds Insufficient’ and
    then again on 27.05.2021 with the remarks “Drawer
    Signature differs”. Thereafter, the complainant sent a legal
    demand notice dated 15.06.2021 to the accused/respondent
    advising him to pay the amount of the cheque within 15
    days of the receipt of the notice i.e. the period prescribed
    under NI Act. As the accused did not pay the amount within
    Digitally
    the said period from the date of service of the notice, the
    signed by
    Ashish
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
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    Santosh Kumari vs Robin Singh

    present Criminal Complaint was filed.

    5. Thereafter, after the pre-summoning evidence of the
    complainant, the notice U/s 251 Cr.P.C was framed against
    the appellant/accused on 02.04.2022 wherein she pleaded
    not guilty and claimed trial and submitted as under in plea
    of defence:-

    plea of defence of the accused

    1. I have taken Rs.5,00,000/- on loan from the
    complainant for which I have issued the cheque in
    question after filling the amount and sign the same
    as security cheque. I had repaid the loan to the
    complainant. Complainant assured med that my
    security cheque will be returned to me but he did
    not return the same.

    2. I received not any legal demand notice
    issued by the complainant.

    Admission/denial of document U/s 194 Cr.P.C
    I admit the cheque in question and returning memo
    for the same.

    6. After completion of complainant’s evidence, statement of
    accused/appellant was recorded U/s 313 Cr.P.C on
    03.11.2023 in which accused stated that this is a false and
    fabricated case filed against him by the complainant.
    Accused further stated that he had taken a loan of Rs.2 lakh
    from the son of the complainant in the year 2018 in cash.
    At the time of taking the loan, he had given the cheque in
    question to the son of the complainant for the security of
    the above said loan and only amount was filled by him.
    After that he had again taken a loan of Rs.3 lakh from the
    son of the complainant in the year 2019 in cash. He had
    Digitally
    signed by
    Ashish made all the payments to the son of the complainant
    Ashish Rastogi
    Rastogi Date: through OnLine transfer and Rs.400/- in cash towards the
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    loan. As such, he does not have any liability to make any
    payment to the complainant towards the cheque in
    question. Accused opted to lead defence evidence and
    accordingly, matter was listed for defence evidence.

    7. On 13.12.2023, the accused examined himself as DW1 and
    took almost similar defence as taken by him in his
    statement recorded U/s 313 Cr.P.C. Thereafter, matter was
    posted for final arguments.

    8. Vide separate judgement dated 28.06.2025,
    accused/respondent was acquitted. Against the said
    impugned Judgment, the appellant has filed this instant
    Appeal.

    9. Ld. Counsel for appellant, inter alia, argued that Ld. Trial
    Court has committed error while passing the impugned
    judgement and ignored the relevant fact. The impugned
    judgement and order is not only perverse but in direct
    conflict with the position of law and evidence on record.

    10.It is further submitted that the case law i.e. “Sanjay Mishra
    vs Kanishka Kapoor @ Nikki
    relied by the Ld. Trial Court,
    has been overruled by the division bench of Hon’ble
    Bombay High Court in “Prakash Madhukarrao Desai vs
    Dattatraya Sheshrao Desai” [Crl
    . Appeal No.895/2018
    dated 19.08.2023].
    Ld. Counsel for appellant also relied
    upon the case law reported as “Lekh Raj Sharma vs Yash
    Pal Gupta
    (2015) 221 DLT 585 in support of his contention.

    11.It is further submitted that the Ld. Trial Court has
    Digitally
    signed by
    Ashish
    committed error in holding that the financial capacity of the
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
    complainant to lend the loan amount was challenged by the
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    Santosh Kumari vs Robin Singh

    respondent or that the answer of CW1 in his cross-
    examination that “I am not aware whether my mother is an
    income tax payee or not. I do not know PAN card number
    of my mother”, amounted to challenging the financial
    capacity of the complainant. Once, the appellant had
    proved bank withdrawals Ex.CW1/3 which were accepted
    by the respondent without any dispute, there was neither
    any scope for challenging the financial capacity of the
    complainant nor was so done by the respondent. He has
    relied upon the case law reported as “Ashok Singh vs State
    of UP (Criminal Appeal No.4171
    of 2024 dated
    02.04.2025) in support of his contention.

    12.It is further submitted that the Ld. Trial Court has
    committed error in taking the circumstances adverse to the
    appellant by observing that ‘further, the loan was repaid in
    07 separate installments between 18.05.2020 to
    01.06.2020. However, not even a single installment was
    made into the account of the complainant and all the
    installments were made into the account of SPA of the
    complainant.’

    13.It is further submitted that the Ld. Trial Court completely
    misdirected itself by ignoring that the “approbate and
    reprobate” doctrine, meaning one cannot both uphold and
    reject something at the same time, is a salutary legal
    principle based on ‘doctrine of election’.

    14.It is further submitted that the Ld. Trial Court fell in error
    Digitally
    signed by
    by not appreciating that it was the case of reverse burden
    Ashish
    Ashish Rastogi
    Rastogi Date: and since the financial capacity of the appellant was not
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    17:04:04
    +0530 challenged, the burden had not shifted back to the
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    appellant. Rather, the respondent was required to dislodge
    the presumptions as held by the Hon’ble Supreme Court in
    “M/s Kumar Exports vs M/s Sharma Capets” (AIR 2009
    SC 1518). Thus, it is submitted that the impugned
    judgement and order are liable to be set aside.

    15.Ld. Counsel for respondent, on the other hand submitted
    that the judgment before the Ld. Trial Court and all the
    evidence as well as material on record has been
    meticulously examined by the Ld. Trial Court. The Trial
    Court has considered all the facts and decided the matter
    against the appellant and there is no need to interfere in the
    said judgment by this court in exercise of its judgment.

    Appeal against Acquittal: –

    16.Before moving on the findings, it is pertinent to discuss in
    brief as to the law related to appeals against acquittal. The
    Hon’ble Supreme Court in “Jafarudheen v. State of
    Kerala
    “, (2022) 8 SCC 440, made a detailed analysis of the
    precedents, with respect to the scope of an appeal against
    acquittal and recorded as under:

    It is also well settled that the court of appeal has as wide
    powers of appreciation of evidence in an appeal against
    an order of acquittal as in the case of an appeal against an
    order of conviction, subject to the riders that the
    presumption of innocence with which the accused person
    starts in the trial court continues even up to the
    appellate stage and that the appellate court should attach
    due weight to the opinion of the trial court which
    recorded the order of acquittal.

    If the appellate court reviews the evidence, keeping those
    principles in mind, and comes to a contrary conclusion,
    Digitally
    signed by
    the judgment cannot be said to have been vitiated. (See
    Ashish
    Ashish Rastogi
    in this connection the very cases cited at the Bar, namely,
    Rastogi Date:

    2026.04.01
    Surajpal Singh v. State; Wilayat Khan v. State of U.P.)
    In
    17:04:08
    +0530
    our opinion, there is no substance in the contention raised
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    Santosh Kumari vs Robin Singh

    on behalf of the appellant that the High Court was not
    justified in reviewing the entire evidence and coming to
    its own conclusions.’
    31.4. In K. Gopal Reddy, this Court has observed that
    where the trial court allows itself to be beset with fanciful
    doubts, rejects creditworthy evidence for slender reasons
    and takes a view of the evidence which is but barely
    possible, it is the obvious duty of the High Court to
    interfere in the interest of justice, lest the administration
    of justice be brought to ridicule.”

    (emphasis in original)

    27. N. Vijayakumar v. State of T.N.as hereunder : (SCC
    pp. 695-99, paras 20-21 & 23-24):

    “20. Mainly it is contended by Shri Nagamuthu, learned
    Senior Counsel appearing for the appellant that the view
    taken by the trial court is a “possible view”, having
    regard to the evidence on record. It is submitted that the
    trial court has recorded cogent and valid reasons in
    support of its findings for acquittal. Under Section 378
    CrPC, no differentiation is made between an appeal
    against acquittal and the appeal against conviction. By
    considering the long line of earlier cases this Court in the
    judgment in Chandrappa v. State of Karnataka has laid
    down the general principles regarding the powers of the
    appellate court while dealing with an appeal against an
    order of acquittal. Para 42 of the judgment which is
    relevant reads as under : (SCC p. 432)
    ’42. From the above decisions, in our considered view,
    the following general principles regarding powers of the
    appellate court while dealing with an appeal against an
    order of acquittal emerge:

    (1) An appellate court has full power to review,
    reappreciate and reconsider the evidence upon which the
    order of acquittal is founded.

    (2) The Code of Criminal Procedure, 1973 puts no
    limitation, restriction or condition on exercise of such
    power and an appellate court on the evidence before it
    may reach its own conclusion, both on questions of fact
    and of law.

    (3) Various expressions, such as, “substantial and
    compelling reasons”, “good and sufficient grounds”,
    “very strong circumstances”, “distorted conclusions”,
    Digitally
    “glaring mistakes”, etc. are not intended to curtail
    Ashish
    signed by
    Ashish
    Rastogi
    extensive powers of an appellate court in an appeal
    Rastogi Date:

    2026.04.01
    against acquittal. Such phraseologies are more in the
    17:04:14
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    reluctance of an appellate court to interfere with acquittal
    than to curtail the power of the court to review the
    evidence and to come to its own conclusion.
    (4) An appellate court, however, must bear in mind that
    in case of acquittal, there is double presumption in favour
    of the accused. Firstly, the presumption of innocence is
    available to him under the fundamental principle of
    criminal jurisprudence that every person shall be
    presumed to be innocent unless he is proved guilty by a
    competent court of law. Secondly, the accused having
    secured his acquittal, the presumption of his innocence is
    further reinforced, reaffirmed and strengthened by the
    trial court.

    (5) If two reasonable conclusions are possible on the
    basis of the evidence on record, the appellate court
    should not disturb the finding of acquittal recorded by the
    trial court.’

    21. Further in the judgment in relied on by the learned
    Senior Counsel for the appellant, this Court has
    considered the powers of the High Court in an appeal
    against acquittal recorded by the trial court. In the said
    judgment, it is categorically held by this Court that only
    in cases where conclusion recorded by the trial court is
    not a possible view, then only the High Court can
    interfere and reverse the acquittal to that of conviction. In
    the said judgment, distinction from that of “possible
    view” to “erroneous view” or “wrong view” is explained.

    In clear terms, this Court has held that if the view taken
    by the trial court is a “possible view”, the High Court
    ought not to reverse the acquittal to that of the
    conviction.

    ***

    23. Further, in Hakeem Khan v. State of M.P. this Court
    has considered the powers of the appellate court for
    interference in cases where acquittal is recorded by the
    trial court. In the said judgment it is held that if the
    “possible view” of the trial court is not agreeable for the
    High Court, even then such “possible view” recorded by
    the trial court cannot be interdicted. It is further held that
    so long as the view of the trial court can be reasonably
    formed, regardless of whether the High Court agrees with
    the same or not, verdict of the trial court cannot be
    Digitally
    signed by
    Ashish
    interdicted and the High Court cannot supplant over the
    Ashish Rastogi
    Rastogi Date:

    view of the trial court.”

    2026.04.01
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    +0530

    17.Before moving further, it shall be pertinent to mention the
    relevant provisions of NI Act as the same shall be pressed
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    into service for deciding the subject matter of this dispute.

    Purpose and relevant provisions of NI Act:

    18.The purpose of NI Act is to safeguard the sanctity of
    Negotiable Instruments and to make sure that they do not
    become a paper tiger and also to curb their widespread
    misuse. With the gradual increase in the financial
    transactions between the parties, the need was felt to enact
    a legal framework wherein transactions could freely be
    concluded between the parties and payments could be done
    with the help of Negotiable Instruments. For the same, it
    was very necessary that there should be a confidence in
    public at large that a legal framework exists which can get
    the Negotiable Instruments enforced. With this salutary
    purpose in mind, the provisions of the NI Act mainly
    Section 138 and 139 NI Act were enacted. The same hold
    as under:-

    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 be 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
    Digitally
    shall apply unless–(a) the cheque has been
    signed by
    Ashish presented to the bank within a period of six
    Ashish Rastogi
    Rastogi Date: months from the date on which it is drawn or
    within the period of its validity, whichever is
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    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 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.

    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 section138 for the discharge, in whole or in part, of
    any debt or other liability.

    19.In addition, Section 118 of NI Act engrafts an additional
    presumption in favor of the holder of the Negotiable
    Instrument and that is that it shall be presumed that every
    Negotiable Instrument was drawn for consideration.
    Section 118(a) of NI Act holds as under:-

    118. Presumptions as to negotiable instruments. —

    Until the contrary is proved, the following
    presumptions shall be made: —

    (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;

    (b) as to date: –that every negotiable instrument bearing a
    date was made or drawn on such date;

    (c) as to time of acceptance: –that every accepted bill of
    exchange was accepted within a reasonable time after its date
    Digitally
    signed by
    and before its maturity;

    Ashish
    Ashish Rastogi
    Rastogi Date:

    2026.04.01

    (d) as to time of transfer: –that every transfer of a
    17:04:30
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    negotiable instrument was made before its maturity;

    (e) as to order of endorsements: –that the endorsements
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    appearing upon a negotiable instrument were made in the
    order in which they appear then on;

    (f) as to stamp: — that a lost promissory note, bill of
    exchange or cheque was duly stamped;

    (g) that holder is a holder in due course: –that the holder
    of a negotiable instrument is a holder in due course:

    PROVIDED that, where the instrument has been obtained
    from its lawful owner, or from any person in lawful custody
    thereof, by means of an offence or fraud, or has been
    obtained from the maker or acceptor thereof by means of an
    offence or fraud, or for unlawful consideration, the burden of
    proving that the holder is a holder in due course lies upon
    him.

    20.Effect of the presumption under Section 139 NI Act:- The
    combined effect of both these Sections when read in
    consonance with each other is that once the basic ingredients
    of Section 138 NI Act are satisfied, the presumption under
    Section 139 automatically kicks in. The said essential
    ingredients are as follows:-

    1. Issuance of a Cheque: The first requirement is the
    issuance of a cheque by the drawer, which could be in
    favor of the payee.

    2. Presentation of the Cheque: The payee must
    present the cheque to the bank within a period of three
    months from the date of issue. It is essential to adhere
    to this timeline, as a delayed presentation might
    weaken the case.

    3. Dishonoured Cheque: If the bank dishonours the
    cheque due to insufficient funds or other specified
    reasons, it is considered a dishonoured cheque.

    4. Notice to the Drawer: The payee must serve a legal
    notice to the drawer within 30 days of receiving the
    information about the dishonoured cheque from the
    bank. The notice should demand the payment of the
    cheque amount within 15 days from the receipt of the
    notice.

    Digitally
    signed by
    Ashish

    5. Failure to Make Payment: If the drawer fails to
    Ashish
    Rastogi
    Rastogi
    Date: make the payment within the stipulated 15-day
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    period, the payee can proceed with filing a complaint.

    21.Once the said presumption kicks in, it is presumed that the
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    cheque was issued for or in discharge of some legally
    enforceable liability. In “Bir Singh v. Mukesh Kumar ;
    (2019) 4 SCC 197″, this Court held that presumption under
    Section 139 of the Act is a presumption of law. The Court
    held as under:-

    “20. Section 139 introduces an exception to the general
    rule as to the burden of proof and shifts the onus on the
    accused. The presumption under Section 139 of the
    Negotiable Instruments Act is a presumption of law, as
    distinguished from presumption of facts. Presumptions are
    rules of evidence and do not conflict with the presumption
    of innocence, which requires the prosecution to prove the
    case against the accused beyond reasonable doubt. The
    obligation on the prosecution may be discharged with the
    help of presumptions of law and presumptions of fact
    unless the accused adduces evidence showing the
    reasonable possibility of the non-existence of the
    presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v.
    Bratindranath Banerjee
    , (2001) 6 SCC 16 : 2001 SCC
    (Cri) 960] .

    22.The words used in the said Section are “shall be
    presumed”. The same, hence, is a mandatory presumption
    of law. Regarding the purport of the said expression, it has
    been observed by the Hon’ble Supreme Court in Neeraj
    Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: –

    “………Courts are authorized to draw a particular
    inference from a particular fact, unless and until the
    truth of such inference is disproved by other facts.
    The court can, under Section 4 of the Evidence Act,
    raise a presumption for purposes of proof of a fact. It
    is well settled that a presumption is not in itself
    evidence but only makes a prima facie case for a party
    for whose benefit it exists. As per English Law, there
    are three categories of presumptions, namely, (i)
    presumptions of fact or natural presumption; (ii)
    presumption of law (rebuttable and irrebuttable); and

    (iii) mixed presumptions i.e., “presumptions of mixed
    law and fact” or “presumptions of fact recognized by
    Digitally law”. The expression “may presume” and “shall
    signed by
    Ashish
    Ashish Rastogi
    presume” in Section 4 of the Evidence Act are also
    Rastogi Date:

    2026.04.01
    categories of presumptions. Factual presumptions or
    17:04:44
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    of “may presume” while legal presumptions or
    compulsory presumptions come under the division of
    “shall presume”.

    “May presume” leaves it to the discretion of the court
    to make the presumption according to the
    circumstances of the case but “shall presume” leaves
    no option with the court, and it is bound to presume
    the fact as proved until evidence is given to disprove
    it, for instance, the genuineness of a document
    purporting to be the Gazette of India. The expression
    “shall presume” is found in Sections 79, 80, 81, 83,
    85, 89 and 105 of the Evidence Act.”

    23.The accused at the time of framing of notice denied the
    receipt of legal demand notice. However, the accused has
    admitted in his statement U/s 313 Cr.P.C that the address
    mentioned on the notice is correct address and he is
    residing at the same address since last 30 years. In light of
    the above, it stands proved that the legal demand notice
    was served upon the accused.

    24.It is admitted fact that he did not make any payment within
    15 days of the service of summons. The Hon’ble Supreme
    Court in “C.C. Alavi Haji v. Palapetty Muhammad, 2007(6)
    SCC 555″, held that the true intent behind the service of
    legal demand notice is to be seen as a precursor to launch
    of prosecution against the Accused and that is providing
    ample opportunity to the Accused to repay the cheque
    amount and avoid the legal proceedings against him. The
    Service of summons upon the Accused fulfills the said
    purpose and provides ample opportunity to the Accused to
    pay the amount in dispute. Any Accused who fails to pay
    Ashish the said amount within 15 days of service of summons
    Rastogi cannot hide behind this technical plea of non-service of
    Digitally signed by
    Ashish Rastogi
    Date: 2026.04.01
    17:04:48 +0530
    legal demand notice, to evade his liability.

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    25.Hence, all the ingredients i.e. issuance of cheque, dishonor
    of cheque, notice to drawer and failure to make payment
    stand satisfied and therefore the presumption 139 and 118
    of NI Act automatically becomes operative in this case i.e.
    that the cheques were issued in discharge of a legally
    enforceable debt.

    26.Therefore, the combined implication of both Section 138
    and 139 NI Act is that once the essential ingredients of
    Section 138 are satisfied and the presumption under Section
    139
    is pressed into service then the case of the Complainant
    against the accused/appellant stands proved that the
    negotiable instrument was issued in discharge of a legally
    enforceable debt and now it is upto him to rebut the
    presumption drawn against him by leading evidence to the
    Contrary. The burden which the accused has to discharge in
    rebutting the said presumption is “preponderance of
    probabilities” while the Complainant has to prove her case
    beyond reasonable doubt. Therefore, what has been
    envisaged is that the accused should raise a probable
    defence which is an expression i.e. different from possible
    defence. In “Kumar Exports v. Sharma Carpets; (2009) 2
    SCC 513″, it was held that mere denial of existence of debt
    will not serve any purpose but accused may adduce
    evidence to rebut the presumption. This Court held as
    under:-

    “20. 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
    Digitally
    signed by particular circumstances of the case the non-existence
    Ashish
    Ashish Rastogi of consideration and debt is so probable that a prudent
    Rastogi Date: man ought to suppose that no consideration and debt
    2026.04.01
    17:04:52
    +0530 existed. To rebut the statutory presumptions an
    CA No.178/2025 14 of 20
    Santosh Kumari vs Robin Singh

    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. Apart from adducing direct
    evidence to prove that the note in question was not
    supported by consideration or that he had not incurred
    any debt or liability, the accused may also rely upon
    circumstantial evidence and if the circumstances so
    relied upon are compelling, the burden may likewise
    shift again on to the complainant. The accused may
    also rely upon presumptions of fact, for instance,
    those mentioned in Section 114 of the Evidence Act to
    rebut the presumptions arising under Sections 118 and
    139 of the Act.”

    27.Therefore, in order to travel from the point of possible
    defence to probable defence, the accused has to have some
    credible material on record so as to raise a doubt on the
    version of the Complainant.

    28.With the above factual and legal background in mind, the
    task cut out for this court is to undertake an independent
    Digitally
    signed by analysis of evidence on record to determine that whether
    Ashish
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
    the accused has successfully rebutted the said presumption
    17:04:56

    by demonstrating the inconsistency/untrustworthiness in
    +0530

    CA No.178/2025 15 of 20
    Santosh Kumari vs Robin Singh

    the testimony of the Prosecution witnesses or by
    successfully proving her own defence by her defence
    evidence.

    29.The first leg of discussion is the independent analysis of
    evidence and relevant facts so as to come to a conclusion
    whether the respondent has infact produced sufficient
    material before the consideration of this court to prove his
    case beyond reasonable doubt and whether the Appellant
    has able to successfully rebut the same.

    Analysis:

    30.At the outset, it is pertinent to mention that case of the
    complainant/appellant is that only Rs.5 lakhs were paid to
    the account of her SPA for repayment of the loan taken
    from the complainant. In this connection it has been clearly
    admitted by the accused that the payment was made by the
    accused from his own bank account, bank of accounts of
    his cousin Ms. Richu Sharma and his wife Mrs. Tanu and
    that it made no difference whether he repaid part loan
    amount from his own account or from the account’s of his
    family members or relatives. The complainant also
    considered the said payment as part repayment of the loan
    which was allegedly advanced by the complainant.
    Likewise it is also admitted case that the payment made
    into the account of SPA of the complainant, may be treated
    as repayment of loan taken from the complainant. Since the

    Digitally
    complainant herself admits that out of the total loan taken,
    signed by
    Ashish
    Ashish Rastogi only Rs.5 lakhs were repaid.
    Rastogi Date:

    2026.04.01
    17:05:03
    +0530 31.The main bone of contention is regarding the conflicting

    CA No.178/2025 16 of 20
    Santosh Kumari vs Robin Singh

    stand of the appellant and respondent. The respondent
    argued that he took only Rs.5 lakhs from the SPA of the
    complainant and the cheque in question was also handed
    over to the SPA of complainant only as a security for
    payment for an initial installment of loan of Rs.2 lakhs.
    While the stand of the appellant is that the loan amount was
    Rs.7 lakhs which was given to the respondent in cash from
    August 2018 till February 2019 after withdrawal of the
    amount from her bank account and from her husband’s
    bank account and that the cheque in question was a post
    dated cheque dated 13.03.2021 which was given to the
    appellant by the respondent in the second week of July
    2020.

    32.To prove the said stand, the appellant has annexed the bank
    account statements of HDFC Bank account (A/c No.1)
    07091930004981 belonging to appellant, HDFC Bank
    account (A/c No.2) 07091930004817 belonging to Naresh
    Kumar Gupta and Indian Bank account (A/c No.3)
    6206697902 belonging to Naresh Kumar Gupta (HUF)
    wherein several entries have been shown vide which
    amount has been withdrawn from the aforesaid accounts.

    The appellant, in his evidence, has mentioned the breakup
    of the loan amount of Rs.7 lakhs and when and in what
    installments, the said amount was withdrawn. CW1 has
    mentioned that Rs.2 lakhs were withdrawn on 27.08.2018,
    Rs.1 lakh was withdrawn on 26.10.2018, Rs.2 lakhs were
    withdrawn on 14.11.2018 and Rs.2 lakhs were withdrawn

    Digitally
    on 02.02.2019. CW1 has further mentioned that he was
    signed by

    present and witnesses the said transaction. However,
    Ashish
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
    17:05:07
    +0530 perusal of the document Ex.CW1/3 i.e. bank account
    CA No.178/2025 17 of 20
    Santosh Kumari vs Robin Singh

    statements brings out a mismatch about the claim of CW1.
    Herein Rs.2 lakhs have been withdrawn on 27.08.2018,
    Rs.1 lakh was was withdrawn on 26.10.2018 and only Rs.1
    lakh each has been withdrawn on 14.11.2018 and
    02.02.2018. Therefore, if the transactions and the amounts
    as mentioned by CW1 are matched from the bank account
    statements, the amount, indeed, comes to Rs.5 lakhs. Even
    if for the sake of arguments, one additional entry from
    account no.2 is considered which shows withdrawal of Rs.1
    lakh on 09.11.2019 then also, the amount comes to Rs.6
    lakhs and not Rs.7 lakhs. The same is without prejudice to
    the fact that there is no evidence to show that the entire
    amount as withdrawn by the appellant were given to the
    respondent for the purpose of advancing the loan. Be that as
    it may the said mismatch itself raises doubt on the version
    of the appellant that the amount of loan was Rs.7 lakhs. In
    such circumstances, it may be held that the accused has
    raised a probable defence to substantiate that the loan
    mount was Rs.5 lakhs.

    33.It is well settled law that once the ingredients of section
    138A are satisfied then the presumption U/s 139 r/w section
    118(a)
    of NI Act operates against the accused and
    presumption that the cheque was given in discharge of
    legally enforceable debt but the said presumption is
    rebuttable presumption and accused can raise a probable
    defence. The standard of proof for the said defence is on
    the touch stone of preponderance of probability. It is the
    Digitally
    signed by
    Ashish
    Ashish Rastogi considered opinion of this Court that respondent has raised
    Rastogi Date:

    2026.04.01
    17:05:11
    +0530
    a probable defence to substantiate his stand that loan
    amount was Rs.5 lakhs. The appellant has not brought
    CA No.178/2025 18 of 20
    Santosh Kumari vs Robin Singh

    fourth any document/agreement or any other evidence so as
    to show that the loan amount was Rs.7 lakhs.

    34.The Ld. Trial Court has further observed that the SPA of the
    appellant was asked about the ITR of the complainant to
    which he replied that he doses not know whether the
    complainant is an income tax payee or not and he further
    stated that he does not know PAN card number of the
    complainant. Therefore, the question was also raised
    regarding the financial capacity of the complainant to lend
    loan amount and proof of loan through ITR. The same may
    be answered by bringing the relevant documents on record
    or tendering the evidence of complainant herself. In this
    regard, the Ld. Trial Court has rightly made reference to
    observations of the Hon’ble Supreme Court in APS Forex
    Services Pvt. Ltd. vs Shakti International Fashion Linkers
    & Ors.
    2020 SCC OnLine SC 193, wherein, inter alia, it
    was observed that:-

    “20. …… In the present case, the accused never
    questioned the financial capacity of the
    complainant. We are of the view that whenever the
    accused has questioned the financial capacity of
    the complainant in support of his probable
    defence, despite the presumption under Section
    139
    of the N.I. Act about the presumption of
    legally enforceable debt and such presumption is
    rebuttable, thereafter the onus shifts again on the
    complainant to prove his financial capacity and at
    that stage the complainant is required to lead the
    evidence to prove his financial capacity, more
    particularly when it is a case of giving loan by
    cash and thereafter issuance of a cheque. That is
    not a case here.”

    35.It is further observed after referring to the decision of
    Digitally

    Hon’ble Bombay High Court in Sanjay Mishra vs Kanishka
    signed by
    Ashish
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
    17:05:15
    +0530
    Kapoor @ Nikki (2009) 5 Bom CR 464 and of Hon’ble
    CA No.178/2025 19 of 20
    Santosh Kumari vs Robin Singh

    Delhi High Court in Ashok Baugh vs Kamal Baugh Crl.
    L.P. No.358/2012 that non-reflection of advance in the ITR
    as a successful factor in rebutting the presumption under
    Section 139 NI Act.

    36.Cumulatively taking into account the reasoning of Ld. Trial
    Court and by independent appreciation of evidence, it is the
    considered opinion of this Court that the respondent has
    been successful in rebutting the presumption on the touch
    stone of preponderance of probability and the view taken
    by the Ld. Trial Court can be considered to be a possible
    view and hence, the same does not warrant any interference
    of this Court in exercise of this appellate jurisdiction.

    Hence, the appeal stands dismissed.

    37.TCR be sent back along with copy of this order.

    38.Appeal file be consigned to the Record Room.
    Announced in the open Court
    on 01.04.2026
    (Ashish Rastogi)
    Digitally Additional Sessions Judge-05
    signed by
    Ashish East/Karkardooma Courts/Delhi
    Ashish Rastogi
    Rastogi Date:

    2026.04.01
    17:05:20
    +0530

    CA No.178/2025 20 of 20



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