Delhi District Court
Madhu Gupta vs Krishan Gupta Alias Kanhiya on 4 July, 2026
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CA No.14/2026
Krishna Gupta @ Kanhiya Gupta
S/o Sh. R.K. Gupta
R/o A/9, Sainik Enclave,
Mohan Garden, Uttam Nagar,
Delhi
.... Appellant
Vs.
Madhu Gupta
W/o Sh. Vinay Kumar Gupta
R/o Shakarpur near Aggarwal
Dharamshala, Delhi-110092
AND
CA No.473/2025
Madhu Gupta
W/o Sh. Vinay Kumar Gupta
R/o MB-120/3, Master Block,
Shakarpur, Delhi-110092
Vs.
Krishna Gupta @ Kanhiya Gupta
S/o Sh. R.K. Gupta
R/o A/9, Sainik Enclave,
Mohan Garden, Uttam Nagar,
Delhi
Also at:
Plot No.1, Vikaskunj Extension, Mohan Garden,
Uttam Nagar, Delhi-110059
Also at:
A-220, Raksha Enclave, Mohan Garden
Uttam Nagar, Delhi-110059.
Digitally
signed by
ASHISH
.... Respondent
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:04:39
+0530 (i) Krishna Gupta vs Madhu Gupta CA No.14/2026
(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 1 of 29
Date of Institution (CA No.14/2026) : 13.01.2026
Date of Institution (CA No.473/2025) : 20.12.2025
Reserved for order : 25.05.2026
Date of order : 04.07.2026
JUDGMENT
1. Vide this common order, I shall dispose off two criminal
appeals bearing CA No.14/2026 titled as Krishna Gupta vs
Madhu Gupta and CA No.473/2025 titled as Madhu Gupta
vs Krishna Gupta @ Kanhiya. As both these these appeals
are inter connected and are challenging the same impugned
order, for the sake of convenience and clarity of
understanding, the parties shall be referred to as
Complainant (Appellant in CA No.473/2025) and Accused
(Respondent in CA No.14/2026).
2. Appeal bearing CA No.14/2026 is filed U/s 415 of BNSS
filed by the appellant/accused against the Judgment dated
17.09.2025 passed by Ld. MM (Municipal Magistrate),
East District, Karkardooma Courts, Delhi in Ct. Case
No.3316/2017 titled as “Madhu Gupta vs RK Gupta and
Krishna”, vide which the appellant was convicted U/s 138
NI Act and vide order on sentence dated 12.12.2025, the
appellant was sentenced to undergo Simple Imprisonment
for a period of six months and also to pay a fine of
Rs.45,50,000/- lakhs as compensation to the complainant
within 30 days. In default of payment of the same, convict
was directed to undergo Simple Imprisonment for a period
of three months. This appeal pertains to cheque bearing
Digitally
No.000136 dated 31.07.2017 for Rs.25 lacs drawn on
signed by
Kotak Mahindra Bank.
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:04:45
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 2 of 29
3. Appeal bearing CA No.473/2025 is filed U/s 372 Cr.P.C
(new section 413 of BNSS) by the complainant/respondent
against the same Judgment dated 17.09.2025 vide which
respondent Krishan Gupta @ Kanhiya was acquitted for
dishonour of cheque bearing No.000018 dated 05.08.2017
amounting to Rs.25 lacs.
4. As the instant appeals are connected, challenge the same
impugned order and the arguments of both the parties have
been advanced in a consolidated way in relation to both the
appeals, it shall be prudent that both the appeals are
disposed off vide a common order. For the sake of
convenience and clarity of understanding, the parties shall
be referred to as Complainant (Madhu Gupta) and Convict
(Krishna Gupta @ Kanhiya).
Factual Matrix
5. The case in brief of the Respondent/Complainant is that
accused/appellant was having cordial/good family relations
with the respondent/complainant. The accused/appellant
asked the complainant for financial help to promote/grow
their business of selling/purchasing building materials etc.
6. Accused R.K. Gupta Building Material is stated to be a
proprietorship concern while accused Krishna Gupta @
Kanhiya Gupta is stated to be proprietor/authorized
signatory of accused R.K. Gupta Building Material.
Considering the request of accused/appellant, the
respondent/complainant advanced a sum of Rs.25 lacs to
the accused on 29.09.2014 through cheque no.52 drawn on
Digitally
signed by
ASHISH Kotak Mahindra Bank. The said amount was advanced as
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:04:49
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 3 of 29
financial assistance for accused’s building material
business, with a verbal assurance from accused to repay the
principal amount alongwith profit (effectively doubling the
amount to Rs.50 lacs) on or before 05.08.2017.
7. In discharge of aforesaid purported liability,
accused/appellant is stated to have issued two cheques
bearing No.000136 and 000018 in favour of the
complainant.
8. The said cheques were presented for encashment at the
complainant’s bank on respective dates but the said cheques
were returned dishonoured with the remarks “funds
insufficient’ and ‘Payment stopped by drawer ‘ vide
returning memos dated 08.08.2017 and 30.08.2017
respectively. After receiving the said cheque returning
memos, the complainant sent a legal demand notice dated
04.09.2017 to the appellant/accused 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 the said period from
the date of service of the notice, the present Criminal
Complaint case No.3316/2017 was filed.
9. After the pre-summoning evidence of the complainant, the
notice U/s 251 Cr.P.C was framed against the
appellant/accused on 13.12.2021 wherein he pleaded not
guilty and claimed trial and submitted as under:
Q2. Whether you have drawn the above said
cheques in favour of the complainant”
Digitally
signed by
A. I only signed cheque No.000136 and it pertains to
ASHISH
ASHISH RASTOGI my bank account. Other particulars were not filled
RASTOGI Date:
2026.07.04
17:04:55
by me. Cheque bearing No.000018 is neither
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signed by me nor filled by me but it pertains to my
bank account.
Q3. Did you receive the legal notice?
A. I do not remember.
Q4. Whether your aforesaid cheque was given to
discharge the legal liability?
A. Cheque bearing No.000136 was given as security
to complainant as I had borrowed Rs.25,00,000/-
from complainant. Cheque bearing No.000018
was not given by me to the complainant.
Q5. Did you plead guilty or have any defence?
I do not plead guilty and claim trial. I have already
paid Rs.25,00,000/- that was given to me by
complainant. I demanded my cheque bearing
No.000136 multiple times from complainant,
however, she did not return to me and misused my
cheque.
Cheque bearing No.000018 was not given by me to
the complainant and it pertains to a cheque book
which was stolen from me. I had also lodged the
complaint regarding the same. I do not have any
liability towards complainant.
10.Thereafter, the matter proceeded for complainant’s
evidence. After completion of complainant’s evidence,
statement of accused/appellant was recorded U/s 313
Cr.P.C on 24.05.2023 in which he has admitted receipt of
legal notice. He stated that only one cheque no.000136
Ex.CW1/3 was given as a security cheque and he has
already returned Rs.26 lacs in cash to the complainant by
2016-2017 and he has no liability towards to the
complainant. Accused opted to lead defence evidence and
accordingly, matter was listed for defence evidence.
11.In defence evidence, accused examined Ms. Shikha Yadav
(bank employee) as DW1 and himself as DW2. DW1
Digitally
signed by
ASHISH
ASHISH
RASTOGI proved bank account opening form of accused in Bank of
RASTOGI Date:
2026.07.04
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Baroda as Ex.DW1/A and cheque stopped letter as
Ex.DW1/B.
12.Vide separate judgement dated 17.09.2025,
appellant/accused was convicted for cheque no.000136 and
acquitted for cheque no.000018 which resulted into filing
of the instant appeals.
13.I have heard the arguments advanced by Ld. Counsels for
both the parties in CA No.473/2025.
14.It was jointly submitted by the Ld. Counsels for appellant
as well as respondent in CA No.14/2026 that they do not
intent to advance oral arguments as the arguments advanced
in CA No.473/2025 covered the arguments in CA
No.14/2026. Ld. Counsel for appellant has also filed
written note of arguments in CA No.14/2026 on behalf of
appellant and relied upon the case law reported as (i)
Rangappa vs Sri Mohan, Crl. Appeal No.1020/2010 (ii)
Basalingappa vs Mudibasappa, Crl. SLP No.8641/2018 (iii)
Krishna Janardhan Bhat vs Dattatraya G. Hegde, Crl.
Appeal No.518/2006, in support of arguments.
Arguments of the Parties:
15.The Complainant with respect to CA No.473/2025 i.e.
appeal against acquittal, has argued that the Ld. Trial Court
failed to appreciate the fact that two cheques were given by
the Convict Krishna Gupta@ Kanhiya. Both the cheques
belonged to him only and were handed over to the
complainant. The Ld. Trial Court further failed to
acknowledge the fact that double the amount was promised
to the Complainant against the admitted payment of Rs
Digitally
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:05:04
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 6 of 29
25,00,000 which was transferred to the bank account of the
convict. The ingredients of Section 138 of the NI Act stood
satisfied in case of the convict and hence burden of the
proof shifted to him to prove that there was no legally
enforceable debt and the convict has failed to discharge the
said burden. The Convict on the other hand has submitted
that there exists no written agreement etc. that double the
amount is to be paid. He further submitted that it has been
his consistent stand which has been further proved by
defence evidence that the cheque no. 000018 was not
signed or issued by him. The said cheque along with
numerous other leaves were stolen and the complaint in
relation to the same was lodged by him and stop payment
instructions were issued in relation to the said cheques. He
further submitted that Ld. Trial Court has rightly come to
the conclusion that there is no evidence, after comparison
of signatures, that the cheque in question i.e. 000018 was
signed by him and there are admittedly differences in both
the signatures. Hence, the Ld. Trial Court has rightly come
to the conclusion that the ingredients of Section 138 NI Act
are not satisfied in relation to cheque no. 000018.
16.With respect to CA No.14/2026 titled Krishna Gupta @
Kanhiya v. Madhu Gupta filed in relation to cheque no.
000136, it has been argued by the Convict that the Ld. Trial
Court failed to consider the fact that it has been a stand of
the convict that more than Rs 25,00,000 i.e. the amount
taken from the Complainant has been repaid in cash. There
ASHISH were repeated telephonic demands to return the security
RASTOGI
Digitally signed by
ASHISH RASTOGI
cheques in question. The varying stand that on one
Date: 2026.07.04
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 7 of 29
occasion it was said that Rs 26,00,000 have been paid while
on other occasion it was said that Rs 32,00,000 have been
paid has to be regarded as minor discrepancy. The written
receipt of the amount given was not taken because of
family relation based on trust and confidence. The
Complainant on the other hand argues that there is no shred
of evidence to prove that the amount of Rs 25,00,000 has in
fact been returned to the Complainant. There is no
agreement, no receipt and no proof of payment of the said
amount. Coupled with the fact that there exists the bank
entry clearly depicting the payment of Rs 25,00,000 and the
admission of the Convict himself regarding the signature
and issuance of cheque, the case of the Complainant with
respect to cheque no. 000136 is proved beyond doubt and
the conclusions arrived by the Ld. Trial Court regarding
cheque no. 000136 cannot be faulted.
Appeal against Conviction: –
17.Before moving on the findings, it is pertinent to discuss in
brief as to the nature of Jurisdiction which is to be
exercised by the High Court in Appeals under Section
374(2) CRPC. The Hon’ble Apex Court in ” Jogi v. State of
Madhya Pradesh; Criminal Appeal No 1350 of 2021″ has
observed: –
“The High Court was dealing with a substantive
appeal under the provisions of Section 374 of the
Code of Criminal Procedure 1973 1. In the exercise
of its appellate jurisdiction, the High Court was
required to evaluate the evidence on the record
independently and to arrive at its own findings as
regards the culpability or otherwise of the accused on
the basis of the evidentiary material.”
Digitally signed
by ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:05:17 +0530
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 8 of 29
18.Therefore, the task of this Court in the course of deciding
the said appeal is to independently assess and appreciate the
evidence on record and arrive at its own finding along with
the reasons to agree/disagree with the findings of the Ld.
Trial Court.
Appeal against Acquittal: –
19.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,
the judgment cannot be said to have been vitiated. (See
in this connection the very cases cited at the Bar, namely,
Surajpal Singh v. State; Wilayat Khan v. State of U.P.) In
our opinion, there is no substance in the contention raised
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
Digitally
signed by
ASHISH
of justice be brought to ridicule.”
ASHISH RASTOGI
RASTOGI Date: (emphasis in original)
2026.07.04
17:05:20
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 9 of 29
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”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
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
Digitally
signed by
competent court of law. Secondly, the accused having
ASHISH
ASHISH
RASTOGI secured his acquittal, the presumption of his innocence is
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 10 of 29
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
interdicted and the High Court cannot supplant over the
view of the trial court.”
20.Before moving further, it shall be pertinent to mention the
relevant provisions of NI Act as the same shall be pressed
into service for deciding the subject matter of this dispute.
Purpose and relevant provisions of NI Act:
21.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
Digitally
ASHISH
signed by
ASHISH
RASTOGI
misuse. With the gradual increase in the financial
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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
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
Digitally cheque,[within thirty days] of the receipt of
signed by
ASHISH information by him from the bank regarding the
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
return of the cheque as unpaid; and
17:05:35
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(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.
22.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
and before its maturity;
(d) as to time of transfer: –that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of endorsements: –that the endorsements
appearing upon a negotiable instrument were made in the
order in which they appear then on;
ASHISH (f) as to stamp: — that a lost promissory note, bill of
RASTOGI exchange or cheque was duly stamped;
Digitally signed by
ASHISH RASTOGI (g) that holder is a holder in due course: –that the holder
Date: 2026.07.04
17:05:39 +0530 of a negotiable instrument is a holder in due course:
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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.
23.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.
5. Failure to Make Payment: If the drawer fails to
make the payment within the stipulated 15-day
period, the payee can proceed with filing a complaint.
24.Once the said presumption kicks in, it is presumed that the
cheque was issued for or in discharge of some legally
enforceable liability. In “Bir Singh v. Mukesh Kumar ;
ASHISH
RASTOGI (2019) 4 SCC 197″, this Court held that presumption under
Digitally signed by
ASHISH RASTOGI Section 139 of the Act is a presumption of law. The Court
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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] .
25.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
law”. The expression “may presume” and “shall
presume” in Section 4 of the Evidence Act are also
categories of presumptions. Factual presumptions or
discretionary presumptions come under the division
of “may presume” while legal presumptions or
compulsory presumptions come under the division of
Digitally
signed by
“shall presume”.
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
“May presume” leaves it to the discretion of the court
17:05:47
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to make the presumption according to the
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 15 of 29
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.”
26.At the time of framing of notice as well as recording of his
statement U/s 313 Cr.P.C, accused admitted taking of loan
of Rs.25 lacs from the complainant as well as issuance of
cheque no.000136. Although he denied the issuance of
cheque no.000018 which admittedly belongs to him. The
accused at the time of framing of notice U/s 251 Cr.P.C.
stated that he did not remember about the receipt of legal
notice. However, in his statement U/s 313 Cr.P.C
appellant/accused admitted receipt of legal demand notice
from the complainant. In light of the above, service of legal
demand notice upon the appellant/accused stands proved.
27.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
the said amount within 15 days of service of summons
Digitally
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04 cannot hide behind this technical plea of non-service of
17:05:53
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 16 of 29
legal demand notice, to evade his liability.
28.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 especially in relation to the cheque
no.000136.
29.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 against of the
Complainant against the Respondent 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 his 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:-
Digitally
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date:
“20. The accused in a trial under Section 138 of the
2026.07.04
17:05:57 Act has two options. He can either show that
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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. 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.”
30.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.
ANALYSIS:
Digitally
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:06:01
+0530
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 18 of 29
31.With the above factual and legal background in mind, the
task cut out for this court is to undertake and independent
analysis of evidence on record to determine that whether
the accused has successfully rebutted the said presumption
by demonstrating the inconsistency/untrustworthiness in
the testimony of the Prosecution witnesses or by
successfully proving his own defence by his defence
evidence.
32.The version as put for by the Complainant as per her
complaint is that Accused No. 2 and 3 were in need of
money for their family business and they asked the
complainant for financial held for growing their family
business for purchasing building material and promised to
pay profit on the said amount as well. In pursuance of the
same, the Complainant advanced Rs 25,00,000 on
29.09.2014 vide cheque no. 52 dated 29.09.2014 which the
accused promised to repay with profit on or before
05.08.2017. In discharge of their legal liability, the Accused
No. 3(Convict) issued two postdated cheques of Rs
25,00,000 each i.e. cheque no. 000136 and 000018 drawn
on kotak mahindra Bank and Bank of Baroda respectively.
The said cheque got dishonoured when presented for
payment with remarks “funds insufficient” and “payment
stopped by drawer” vide return memo dated 08.08.2017
and 30.08.2017 and were received by the Complainant
dated 14.08.2017 and 01.09.2017 respectively. Later on,
vide order dated 03.01.2018 of the Ld. MM, Accused No. 2
Digitally was not summoned and the matter proceeded against the
signed by
ASHISH
ASHISH RASTOGI convict i.e. Krishna Gupta @Kanhiya.
RASTOGI Date:
2026.07.04
17:06:05
+0530
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 19 of 29
33.The notice against the convict was framed on 13.12.2021
vide which the convict accepted that he signed the cheque
bearing no. 000136 and said that it pertains to his bank
account. He also admitted that he had borrowed Rs
25,00,000 from the complainant and the cheque bearing no.
000136 was given as a security cheque. He further in his
plea of defence said that he has already repaid the said
amount of Rs 25,00,000 and that no liability subsists in
relation to the same and that he demanded his security
cheque bearing no. 000136 from the complainant several
times but the complainant did not give it back. Regarding
the cheque bearing no. 000018, the convict categorically
mentioned that the said cheque was not given to the
complainant and was neither signed or filled up by him. He
further said that the cheque book to which the said cheque
belonged got stolen and a complaint regarding the same
was lodged.
34.The Complainant got examined as CW-1 and in her cross
examination she mentioned that she advanced a loan of Rs
25,00,000 to the convict on an assurance that the convict
shall return double the loan amount in 3 years but admitted
that there exists no written agreement regarding the said
terms and conditions.
35.As far as the cheque no. 000136 is concerned, as mentioned
above the convict has already accepted the fact that he
borrowed Rs 25,00,000 from the complainant as loan and
gave cheque bearing no. 000136 as a security cheque. The
Digitally
signed by
stand of the Convict that the said cheque was a security
ASHISH
ASHISH RASTOGI
RASTOGI Date: cheque and that the particulars were not filled by him is of
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 20 of 29
no help to the convict as the law in this regard has been
settled by the Hon’ble Supreme Court in catena of cases. In
Ravi Chopra Vs. State and Anr. (2008) 102 DRJ 147 , the
Hon’ble High Court of Delhi held:
“Section 20 NI Act talks of ‘inchoate stamped
instruments’ and states that if a person signs and
delivers a paper stamped in accordance with the law
and ‘either wholly blank or have written thereon an
incomplete negotiable instrument’ such person
thereby gives prima facie authority to the holder
thereof ‘to make or complete as the case may be upon
it, a negotiable instrument for any amount specified
therein and not exceeding the amount covered by the
stamp.’ “A collective reading of the above provisions
shows that even under the scheme of the NI Act it is
possible for the drawer of a cheque to give a blank
cheque signed by him to the payee and consent either
impliedly or expressly to the said cheque being filled
up at a subsequent point in time and presented for
payment by the drawee. There is no provision in the
NI Act which defines the difference in the
handwriting or the ink pertaining to the material
particulars filled up in comparison with the signature
thereon as constituting a ‘material alteration’ for the
purposes of Section 87 NI Act. What is essential is
that the cheque must have been signed by the
drawer.”
36.Further, apart from the presumption of a legally enforceable
debt drawn against the Accused by virtue of Section 139 NI
act, the liability to an extent of Rs 25,00,000 is further
crystallised by the own admission of the convict when he
entered his plea of defence at the time of framing of notice
u/s 251 Cr.P.C. The Complainant has further proved the
liability by exhibiting her bank statement as Ex-CW-1/1
wherein a clear debit entry dated 29.09.2014 is shown
towards R K Gupta Building material. Hence, there exists
Digitally
signed by
no doubt that as far as legally enforceable debt of Rs
ASHISH
ASHISH RASTOGI
RASTOGI Date: 25,00,000 is concerned, all the ingredients of Section 138
2026.07.04
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 21 of 29
NI Act stand to be fulfilled since the signatures on the
cheque in question i.e. 000136 have also been admitted by
the convict.
37.That being the case, the only option left to the convict to
rebut the said presumption drawn against him was to prove
that the said loan as admitted by him has been repaid and as
on date no legally enforceable debt exists. The Convict said
the same in his plea of defence. He also entered the witness
box during his defence evidence and got himself examined
as DW-2 wherein he mentioned that he returned more than
Rs 25,00,000 i.e. in total Rs 32,00,000 in cash in several
tranches. In this connection, it is observed that the same is
only a bald defence without any substance whatsoever as he
clearly admits in his cross that there is no receipt of
payment of the said amount. There is not even a single
communication or an acknowledgment that any amount has
been repaid towards the said liability. There is also no
communication to an effect to demand the return the said
security cheque as the amount for which it was furnished
has been repaid. In light of the above, it has been rightly
held by the Ld. Trial Court that the Convict has miserably
failed to rebut the presumption that has been drawn against
him under Section 139 NI Act qua the dishonour of the
cheque no. 000136 and no occasion arises to interfere with
the findings of Ld. Trial Court in this regard.
38.Coming to the alternate plea of the Convict of
reduction/modification of sentence and compensation, it
Digitally
has been noted by the Ld. Trial Court that the case is
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
17:06:21
pending for 8 years and the Accused has no real defense in
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 22 of 29
the matter. His only defense is that he has repaid the
amount taken from the Complainant in cash for which he
has no receipt or proof. This court agrees with the
conclusion of the Ld. Trial Court that the defence of the
Accused is nothing but a totally unsubstantiated bald
assertion without any shred of evidence.
39.Having said this, the principle of Compensation in NI Act
cases has been settled by the Hon’ble Supreme Court in R.
Vijayan v Baby & Ors. (2012) 1 SCC 260 wherein the
Hon’ble Supreme Court held as under:
“18. Having reached that stage, if some Magistrates
go by the traditional view that the criminal
proceedings are for imposing punishment on the
accused, either imprisonment or fine or both, and
there is no need to compensate the complainant,
particularly if the complainant is not a “victim” in the
real sense, but is a well-to-do financier or financing
institution, difficulties and complications arise. In
those cases where the discretion to direct payment of
compensation is not exercised, it causes considerable
difficulty to the complainant, as invariably, by the
time the criminal case is decided, the limitation for
filing civil cases would have expired. As the
provisions of Chapter XVII of the Act strongly lean
towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are
special circumstances, in all cases of conviction,
uniformly exercise the power to levy fine up to twice
the cheque amount (keeping in view the cheque
amount and the simple interest thereon at 9% per
annum as the reasonable quantum of loss) and direct
payment of such amount as compensation. Direction
to pay compensation by way of restitution in regard to
the loss on account of dishonour of the cheque should
be practical and realistic, which would mean not only
the payment of the cheque amount but interest
thereon at a reasonable rate. Uniformity and
consistency in deciding similar cases by different
Digitally
signed by
ASHISH
courts, not only increase the credibility of cheque as a
ASHISH RASTOGI
RASTOGI Date: negotiable instrument, but also the credibility of
2026.07.04
17:06:25
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 23 of 29
courts of justice.”
40.Applying the said principle as laid down by the Hon’ble
Supreme Court in this case, as per the calculation the
amount of quantum of loss comes to Rs 18,00,000(9%
simple interest on Rs 25,00,000 for 8 years). Adding the
same to the cheque amount, the total amount of
compensation comes to Rs 43,00,000. Therefore, it is the
considered opinion of this Court that the amount of
compensation be reduced to Rs 43,00,000.
41.Now, coming to the second leg of discussion that is with
respect to the second cheque i.e. 000018. The Convict in
this respect has maintained a consistent stand that the
neither he has signed on the cheque nor has he filled up the
details of the cheque in question. The said stand has
remained consistent in his plea of defence in the notice u/s
251 Cr.P.C, his defence evidence and his statement under
Section 313 Cr.P.C. In this context, while considering the
plea of the convict in relation to cheque no. 000018 various
factors are to be kept in mind. Firstly, the convict as
mentioned above has consistently denied his signature on
the cheque in question. Secondly, the complainant also
admitted the difference in handwriting of the content of the
cheque and the name. She further admitted that both the
cheques bear different names. While in 000136, the
signatures are by the name of “Krishna Gupta”, in 000018
they are in the name of “kanhiya”. The explanation given
by her on that count does not appear to be plausible. She
said that the convict told her that since the accounts are
Digitally
signed by
ASHISH
ASHISH RASTOGI
RASTOGI Date: different that is why the signatures are different. It is highly
2026.07.04
17:06:32
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 24 of 29
unlikely that any reasonable prudent man will accept two
cheques of different name from the same person in the
course of the same transaction without any enquiry on that
count. Thirdly, the Ld. Trial Court also undertook an
exercise of visual comparison of both the signatures which
it is empowered to do under Section 73 of the Indian
Evidence Act, 1872 and came to the conclusion that both
the signatures are different in terms of slant, style, letter
formation and do not bear any similarity. Fourthly, the
Complainant in her cross examination categorically
mentioned that the entire transaction took place in the
presence of one Sh. Om Prakash Gupta (Maternal father-in-
law/Fufaji) but he has not been examined as the
Complainant witness withholding material evidence. In this
regard, the Ld. Trial Court has rightly relied on Section
114, illustration (g) of the Indian Evidence Act to draw
adverse inference against the complainant which holds as
under:
114. Court may presume existence of certain facts.
— The Court may presume the existence of any fact
which it thinks likely to have happened, regard being
had to the common course of natural events, human
conduct and public and private business, in their
relation to the facts of the particular case.
The Court may presume —
(a) that a man who is in possession of stolen goods
soon, after the theft is either the thief or has received
the goods knowing them to be stolen, unless he can
account for his possession;
(b) that an accomplice is unworthy of credit, unless
he is corroborated in material particulars;
Digitally
signed by
ASHISH
(c) that a bill of exchange, accepted or endorsed, was
ASHISH
RASTOGI
RASTOGI
Date:
accepted or endorsed for good consideration;
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17:06:35
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 25 of 29
(d) that a thing or state of things which has been
shown to be in existence within a period shorter than
that within which such things or states of things
usually cease to exist, is still in existence;
(e) that judicial and official acts have been regularly
performed;
(f) that the common course of business has been
followed in particular cases;
(g) that evidence which could be and is not produced
would, if produced, be unfavourable to the person
who withholds it;
(h) that if a man refuses to answer a question which
he is not compelled to answer by law, the answer, if
given, would be unfavourable to him;
(i) that when a document creating an obligation is in
the hands of the obligor, the obligation has been
discharged.
But the Court shall also have regard to such facts as
the following, in considering whether such maxims
do or do not apply to the particular case before it: —
as to illustration (a) — a shop-keeper has in his bill a
marked rupee soon after it was stolen, and cannot
account for its possession specifically, but is
continually receiving rupees in the course of his
business;
as to illustration (b) –A, a person of the highest
character, is tried for causing a man’s death by an act
of negligence in arranging certain machinery. B, a
person of equally good character, who also took part
in the arrangement, describes precisely what was
done, and admits and explains the common
carelessness of A and himself;
as to illustration (b) — a crime is committed by
several persons. A, B and C, three of the criminals,
are captured on the spot and kept apart from each
other. Each gives an account of the crime implicating
D, and the accounts corroborate each other in such a
manner as to render previous concert highly
Digitally
signed by improbable;
ASHISH
ASHISH RASTOGI
RASTOGI Date:
2026.07.04
as to illustration (c) — A, the drawer of a bill of
17:06:40
+0530 exchange, was a man of business. B, the acceptor,
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(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 26 of 29
was a young and ignorant person, completely under
A’s influence;
as to illustration (d) — it is proved that a river ran in
a certain course five years ago, but it is known that
there have been floods since that time which might
change its course;
as to illustration (e) — a judicial act, the regularity of
which is in question, was performed under
exceptional circumstances;
as to illustration (f) — the question is, whether a
letter was received. It is shown to have been
posted,but the usual course of the post was
interrupted by disturbances;
as to illustration (g) — a man refuses to produce a
document which would bear on a contract of small
importance on which he is sued, but which might
also injure the feelings and reputation of his family;
as to illustration (h) — a man refuses to answer a
question which he is not compelled by law to answer,
but the answer to it might cause loss to him in
matters unconnected with the matter in relation to
which it is asked;
as to illustration (i) — a bond is in possession of the
obligor, but the circumstances of the case are such
that he may have stolen it.
42.Fifthly, the Convict in his defence evidence produced Ms.
Shika Yadav, Bank employee of Bank of Baroda as DW-1
who testified that that whole series of cheques containing
14 leafs beginning from cheque no. 17 was stopped for
payment.
43.In such circumstances i.e. the categorical consistent denial
of the Convict regarding his signature on the body of the
cheque no. 000018 and the factors underlined above, the
Ld. Trial Court rightly came to the conclusion that the
ASHISH
RASTOGI circumstances warranted the shifting of the burden of
Digitally signed by
ASHISH RASTOGI
Date: 2026.07.04
proving the signatures of the convict, to the Complainant
17:06:45 +0530
(i) Krishna Gupta vs Madhu Gupta CA No.14/2026
(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 27 of 29
which she has failed to discharge as evidently no
handwriting expert was produced by the Complainant.
Moreover, even the debt in this case could not be proved by
the Complainant as it is only a bald and unsubstantiated
assertion of the Complainant that double the amount of
loan advanced was promised to the Complainant. It is a
matter of record and also borne out clearly from the cross
examination of the Complainant that she admitted that no
written agreement regarding advancement of loan exists
and no independent witness of the said transaction has also
been produced. The law occupying the field regarding
appeal against acquittal has been discussed in detail in the
beginning of the judgment i.e. that the Appellate court
should not interfere with the findings of the Ld. Trial Court,
if upon independent appreciation of evidence, it finds that
the view taken by the Ld. Trial Court is a possible view.
Upon independent appreciation of evidence and on the
basis of discussion above, it is the considered opinion of
this Court that the Ld. Trial Court has rightly acquitted the
Convict Krishna Gupta @ Kanhiya in relation to cheque
bearing no. 000018 as the view of the Ld. Trial Court of
acquitting the convict Krishna Gupta viz a viz dishonour of
cheque bearing no. 000018 is indeed a possible view.
Hence, the findings of the Ld. Trial Court wherein the
Accused has been acquitted w.r.t. cheque bearing number
000018 demands no interference by this court in exercise of
its appellate jurisdiction.
ASHISH RASTOGI Operative Part: Digitally signed by ASHISH RASTOGI Date: 2026.07.04 17:06:50 +0530
In terms of the Discussion above, CA No.473/2025 titled
(i) Krishna Gupta vs Madhu Gupta CA No.14/2026
(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 28 of 29
Madhu Gupta v. Krishna Gupta @Kanhiya stands
dismissed and CA No.14/2026 titled Krishna Gupta @
Kanhiya v. Madhu Gupta stands partly allowed to an extent
that compensation amount stands reduced to Rs 43,00,000
while the conviction is upheld.
44.TCR be sent back along with copy of this order.
45.Appeal file be consigned to the Record Room.
Announced in the open Court
on 04.07.2026.
(Ashish Rastogi)
Digitally
signed by Additional Sessions Judge-05
ASHISH
ASHISH
RASTOGI East/Karkardooma Courts/Delhi
RASTOGI Date:
2026.07.04
17:06:54
+0530
(i) Krishna Gupta vs Madhu Gupta CA No.14/2026
(ii) Madhu Guta vs Krishna Gupta @ Kanhiya CA No.473/2025 29 of 29
