Delhi District Court
Mukesh Kumar vs Smt. Pushpa Devi on 21 July, 2026
DLNE020156592022
IN THE COURT OF MS. SANJANA KASANA,
JMFC, N.I. ACT, NE, KKD, NEW DELHI
CC No. : 1086/2022
U/s : 138 N. I. Act
PS : Bhajan pura
Mukesh Kumar vs Pushpa Devi & Anr.
JUDGMENT
1. CC No. : 1086/2022
2. Date of institution of the case : 19.09.2022
3. Name of complainant : Mukesh Kumar
s/o Sh. Sitaram
R/o House No. BÂ1,
Police Colony,
Bhajanpura
DelhiÂ110053
4. Name of accused, parentage
and address : Smt. Pushpa Devi
w/o Sh. Ravinder
Kumar,
Prop.Hanuman Brick
Field Mohalla
Bavalon Ka
(Shastri Nagar)
Village & post Ailum,
Distt. Shamli
UPÂ247771
5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not
guilty
7. Final order : Acquittal
8. Date on which order was : 17.07.2026
reserved
SANJANA
9. Date of pronouncement : 21.07.2026. KASANA
Digitally signed by
SANJANA KASANA
CC NO.1086/22 Page 1 of 15 (SANJANA KASANA) Date: 2026.07.21
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FACTUAL BACKGROUND OF THE CASE
1. Vide this judgment, this Court shall dispose off the
present complaint case instituted by the Complainant invoking
the provisions of Section 138 of the Negotiable Instruments Act,
1881(as in after referred to as NI Act).
2. The facts giving rise to the instant complaint case, as
per the complainant, may be summarized as hereafter: That
accused no.1 through accused no.2 approached the father of the
complainant for lifting soil to make bricks from his field/plot of
land, admeasuring 10 bighas located in Ailum Shamli, UP for a
period of two years w.e.f. 30.03.2020 @ Rs.16,000/ per bigha per
annum. The accused had already been in possession of another
field of land admeasuring 3 bighas for same purpose at the same
rate. Accordingly, an agreement dt. 30.03.2020 was executed
between the accused no.2 and the father of the complainant. The
said agreement was already expired on 30.03.2022. That from
01.04.2022 onwards rate of lifting soil has been revised to @ Rs.
25,000/Â per annum per bigha. That on 31.07.2022, accused no.1
&2 jointly as well as severally were liable to pay an amount of
Rs.2,24,333/Â to father of the complainant. That accused no.1
through accused no.2 handed over a cheque no. 000043 dt.
02.07.2022 of Rs.1 lac, drawn on bank of Baroda, Shamli for
partial discharge of liability of accused no.1 towards the
complainant with an assurance that same would be honoured on
SANJANA
its presentation by his banker. That when complainant presented
KASANA
the abovesaid cheque for encashment, the same was returned Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
unpaid with remarks “insufficient funds” vide returning memo dt.
07.07.2022. That when accused did not pay the said amount after
repeated requests, complainant issued a legal demand notice
dated 02.08.2022 calling upon the accused to pay the amount of
the aforesaid cheques within the stipulated period but the accused
did not make the payment within the statutory period, hence the
present complaint.
PROCEEDINGS BEFORE COURT
3. The complainant tendered his evidence by way of
affidavit and relied upon following evidences:Â
a) Evidence affidavit Ex. CW1/A
b) Cheque in question Ex. CW1/1
c) Return memo dt.07.07.2022 Ex. CW1/2
d) Legal demand notice dt. 02.08.2022 and Ex. CW1/3
postal receipt (colly)
e) Tracking report Ex. CW1/4
f) Certificate U/s. 65B IE Act Ex. CW1/5
g) Copy of agreement Mark A
4. Upon appreciation of preÂsummoning evidence,
accused was summoned for an offence punishable under Section
138 of NI Act and notice under Section 251, Code of Criminal
Procedure, 1973 (herein after referred to as Cr.P.C.) was served
upon accused on 28.04.2023 to which she pleaded not guilty and
claimed trial. The accused took the defence that she know the
complainant and she had given the cheque in question to father
Digitally
signed by
SANJANA
SANJANA KASANA
KASANA Date:
2026.07.21
16:32:34
+0530
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
of complainant signed in blank without filling the particulars for
the purpose of tilling soil from the agricultural land of the father
of the complainant. The cheque in question had been
dishonoured. Accused further stated that she had transferred an
amount of Rs.50,000/Â in the account of complainant on
10.07.2022 and also Rs.50,000/Â on 14.07.2022. The accused
admitted her signature on the cheque in question but denied other
particulars of the cheque being filled by her. She also denied
having received the legal demand notice. Accused further stated
that he does not owe the liability of cheque amount of the
complainant or his father.
5. Thereafter, on oral request accused was granted
opportunity to cross examine the complainant as well as his
witnesses, if any, under Section 145 (2) of NI Act vide order
dated 28.04.2023.
6. The complainant has only examined himself as
CW1. In the post summoning evidence, the complainant (CW1)
has adopted his preÂsummoning evidence. The
complainant/CW1was cross examined by the Ld. Counsel for
accused. CE was closed vide order dated 22.05.2025.
7. Accused was, thereafter, examined U/s 281 r/w Sec
313 Criminal Procedure code, 1872 on 10.09.2025 wherein entire
incriminating evidence was put to her. The accused took defence SANJANA
that she has no liability towards the complainant as she had KASANA
Digitally signed by
SANJANA
KASANA
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already discharged his liability before the dishonor of the cheque
in question.
8. Accused has not examined any witness in her
defence despite opportunity. Accordingly, DE was closed vide
order dt. 10.11.2025 and the matter was fixed for final
arguments.
9. I have considered the rival submissions of the parties
and perused the entire evidence led by the parties and the
material available on record.
FINAL ARGUMENTS
10. Written submissions have been filed on behalf of
complainant. During the course of final arguments, complainant
has reiterated his written submissions.
11. Per contra, Ld. Counsel for the accused has argued
that the offence is not made out as the accused has no liability to
pay the cheque amount as the accused has already paid the
amount of Rs. 1,00,000/Â in two equal instalments of Rs 50,000/Â
each through phonepe to the complainant after receiving the legal
demand notice of same amount. Further, he has argued that
complainant has not submitted any other document/agreement to
support his claim of excess amount. He stated that liability lies
only on behalf of the father of complainant and therefore, the SANJANA
KASANA
accused be acquitted of the offence.
Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
INGREDIENTS OF OFFENCE AND DISCUSSION
12. Before dwelling into the facts of the present case, it
would be apposite to discuss the legal standards required to be
met by both sides. In order to establish the offence under Section
138 of NI Act, the prosecution must fulfill all the essential
ingredients of the offence. Perusal of the bare provision reveals
the following necessary ingredients of the offence:Â
First Ingredient: The cheque was drawn by a
person on an account maintained by him for
payment of money and the same is presented for
payment within a period of 3 months from the
date on which it is drawn or within the period of
its validity;
Second Ingredient: The cheque was drawn by the
drawer for discharge of any legally enforceable
debt or other liability;
Third Ingredient: The cheque was returned
unpaid by the bank due to either insufficiency of
funds in the account to honour the cheque or that
it exceeds the amount arranged to be paid from
that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount
has been made by the payee or holder in due
course of the cheque by a notice in writing given
to the drawer within thirty days of the receipt of
information of the dishonour of cheque from the
bank;
Fifth Ingredient: The drawer fails to make
payment of the said amount of money within
fifteen days from the date of receipt of notice.
It is only when all the aforementioned ingredients
are satisfied that the person who had drawn the cheque can be
deemed to have committed an offence under Section 138 of the
NI Act
13. The accused can only be held guilty of the offence SANJANA
KASANA
under Section 138 NI Act if the aboveÂmentioned ingredients are Digitally signed by
SANJANA KASANA
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proved by the complainant coÂextensively. Additionally, the
conditions stipulated under Section 142 NI Act have to be
fulfilled.
PROVING OF INGREDIENTS
14. Notably, there is no dispute qua the proof of first,
third, fourth and fifth ingredient. The complainant had proved
the original cheque vide Ex.CW1/1 which the accused has not
disputed as being drawn on the account of the accused. It was not
disputed that the cheque in question was presented within its
validity period. The cheque in question was returned unpaid vide
return memo Ex. CW1/2 which has also not been disputed. With
regard to the proving of fourth ingredient i.e. the service of legal
demand notice, the accused has initially denied the receipt of the
same in notice framed u/s 251Crpc but admitted its receiving in
her statement u/s 313 Crpc. Further, in view of the presumption
u/s 27 of the General Clauses Act, 1897, Ex. CW1/3 &CW1/5
(legal notice, postal receipt and tracking report) alongwith the
ratio laid down in the case of “C. C. Alavi Haji Vs. Palapetty
Mohd. & Anr 2007 AIR SCW 3578, I am of the considered
opinion that the fourth ingredient of the offence stands proved.
RAISING OF PRESUMPTION
15. The accused has admitted the signatures on the
cheque in question in her notice u/s 251 r/w 294 CrPC and in her
statement u/s 313 CrPC.
SANJANA
KASANA
Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
16. As per the scheme of the NI Act, once the accused
admits signature on the cheque in question, certain presumptions
are drawn, which result in shifting of onus. Section 118(a) of the
NI Act lays down the presumption that every negotiable
instrument was made or drawn for consideration. Another
presumption is enumerated in Section 139 of NI Act laying down
the presumption that the holder of the cheque received it for the
discharge, in whole or part, of any debt or other liability.
17. The combined effect of these two provisions is a
presumption that the cheque was drawn for consideration and
given by the accused for the discharge of debt or other liability.
Both the sections use the expression “shall”, which makes it
imperative for the court to raise the presumptions, once the
foundational facts required for the same are proved. Reliance is
placed upon the judgment of the Hon’ble Supreme Court, Hiten
P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, Kumar
Exports vs. Sharma Carpets (2009) 2 SCC 513 and Bir Singh
vs. Mukesh Kumar (2019) 4 SCC 197.
18. Therefore, in the instant case, since the accused has
admitted her signatures on the cheque in question, the
aforementioned statutory presumptions would be raised in favour
of the complainant regarding the fact that the impugned cheque
has been drawn for consideration and issued by the accused in
discharge of legally enforceable debt.
SANJANA
KASANA
Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
APPRECIATION OF EVIDENCE QUA SECOND
INGREDIENT (EXISTENCE OF LEGALLY
ENFORCEABLE DEBT/LIABILITY)
19. The presumptions contemplated in the NI Act are
rebuttable presumptions and once the same are raised, it is for the
accused to rebut the same by establishing a probable defence.
The principles pertaining to the presumptions and the onus of
proof were recently summarized by the Hon’ble Apex Court in
Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
“25.1. Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption
that the cheque was for the discharge of any debt
or other liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise probable defence. The standard
of proof for rebutting the presumption is that of
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the
accused can also rely on the materials submitted
by the complainant in order to raise a probable
defence. Inference of preponderance of
probabilities can be drawn not only from the
materials brought on record by the parties but
also by reference to the circumstances upon
which they rely.”
20. In the instant case, the complainant seeks to enforce
liability upon the accused on the ground of agreement dated
30.03.2020 till 30.03.2022 and further possession by the accused
from 01.04.2022 between accused and father of complainant for
lifting of soil from his field for making bricks, the cheque in
SANJANA
question being issued by the accused in partial discharge of the KASANA
said liability in favour of the complainant. Since a presumption Digitally signed by
SANJANA KASANA
Date: 2026.07.21
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
as envisaged u/s 118 and 139 of the Negotiable Instruments Act
is attracted in favour of the Complainant as such, it is now
incumbent upon the accused to rebut the said presumption on the
basis of preponderance of probabilities.
21. In order to rebut the same, the accused has firstly
stated that the cheque in question was given to the father of
complainant as a blank signed cheque for the purpose of tilling
soil from the agricultural land of the father of the complainant
and complainant has filled his name on the cheque in question
instead of his father. It is to observe that the Hon’ble Supreme
Court in Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197, has
held that “If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the amount
and other particulars. This in itself would not invalidate the
cheque. The onus would still be on the accused to prove that the
cheque was not in discharge of a debt or liability by adducing
evidence.” Therefore, this defence is not sustainable.
22. The accused has secondly claimed that he has
already made payment of Rs. 1 lacs in two instalments of Rs.
50,000/- each. Further, the complainant has also admitted
receiving said payment of Rs. 1,00,000/- after sending of legal
demand notice in his cross examination as CW1. This court has,
in exercise of power u/s 168 of BSA, 2023 IEA, asked both the
parties to furnish proof of payment as claimed. Thereafter, on
17.07.2026, both the parties have furnished proof of payments
along with additional submissions, as per which the said amounts
of Rs.50,000/- each have been received by complainant on SANJANA
KASANA
10.07.2022 and 14.07.2022 i.e., prior to sending of legal demand
Digitally signed by
notice but after dishonor of cheque in question. It is the rule of SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD 16:33:57 +0530
law that if payment is made before the legal demand notice is
formally issued and received, a criminal complaint under Section
138 of the Negotiable Instruments (NI) Act is generally not
maintainable.
23. Therefore, the onus now again shifts upon the
complainant. The complainant has in his written submissions and
during the course of final arguments, has stated that the said
amount of Rs. 1,00,000/- was with regard to another cheque
bearing no. 382840 for an amount of Rs. 1,04,000/- dated
19.03.2021. However, this fact of another cheque has not been
mentioned by the complainant anywhere in his complaint, in his
evidence affidavit etc. Complainant cannot introduce new facts
or a new case at the final argument stage. The scope of arguments
is strictly limited to the facts originally pleaded in the complaint,
the statutory notice, and the evidence already on record. Further,
accused never had the opportunity to cross examine complainant
with regard to cheque bearing no. 382840 for amount of Rs.
1,04,000/- dated 19.03.2021. Hence, this averment of
complainant regarding appropriation of payment of Rs.
1,00,000/- with respect to another cheque bearing no. 382840 for
amount of Rs. 1,04,000/- dated 19.03.2021 cannot be sustained
and is decided in favour of accused.
24. Thirdly, Accused has nowhere denied agreement
dated 30.03.2020 which is Mark A. As per complaint, the said
agreement has already expired on 30.03.2022. The accused has
also cross examined the complainant as CW1 wherein he has
admitted in his cross examination that the there is no agreement SANJANA
after 02.08.2022 with accused with regard to digging of soil from KASANA
the agricultural land. Further, in his cross examination as CW1 Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD 16:34:10 +0530
dated 22.05.2025, complainant has stated that in the said report it
is clarified that from point A to B that there is no dispute of any
kind and the said land has been vacated by the accused side and
there is no dispute. Hence, complainant failed to prove his claim
of excess amount and this averment is decided in favour of the
accused.
25. Therefore, the stand taken by the accused has been
constant at all stages of the trial and further gives strength to the
defence attempted to be established by him. Thus the allegations
in the complaint appear to be bald and vague assertions
unsubstantiated by cogent evidence in support.
26. Recently, the Hon’ble High Court of Delhi in case
titled ‘Shri Ashok Gaur vs. State of NCT of Delhi & Anr’
(CRL. A.560/2020) has held that “It is also pertinent to note that
the presumption under section 139 of the NI act is not absolute,
and may be controverted by the accused. In doing so, the
accused only ought to raise a probable defence on a
preponderance of probabilities to show that there existed no debt
in the manner so pleaded by the complainant in his
complaint/demand notice or the evidence. Once the accused
successfully raises a probable defence to the satisfaction of the
court, his burden is discharged, and the presumption
‘disappears’. The burden then shifts upon the complainant, who
then has to prove the existence of such debt as a matter of fact”.
27. It is well settled law that an accused has a right to
SANJANA
rebut the presumption by placing reliance upon the circumstances KASANA
brought and material placed by the complainant as held by the Digitally signed by
SANJANA KASANA
Hon’ble Supreme Court in Rangappa Vs. S. Mohan. It is a well Date: 2026.07.21
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
settled principle of law that complainant has to stand on its own
leg and prove its case beyond reasonable doubt. It has also been
held by Hon’ble Supreme Court in Rahul Builders vs. Arihant
Fertilisers and Chemicals and another, (2008) 2 SCC 321 that
N.I. Act envisages application of the penal provisions which
needs to be construed strictly. Therefore, even if two views in the
matter are possible, the Court should lean in favour of the view
which is beneficial to the accused. This is more so, when such a
view will also advance the legislative intent, behind enactment of
this criminal liability.
28. In present matter, the accused has been able to raise
a reasonable probable defence by punching holes in the case of
the complainant itself on the basis of the materials brought on
record and by way of cross examination of the complainant. The
same in turn has created doubt about the existence of a legally
enforceable debt or liability and accordingly, the accused has
been able to rebut the presumptions under sections 118 and 139
of the NI Act and the reverse onus cast upon him has been
discharged. Furthermore, the case of the complainant has to stand
on its own legs and the complainant has to discharge its initial
burden of proof and prove its case beyond reasonable doubt
which has not been done by the complainant in the present case.
29. It is imperative to understand that in order to
pronounce a conviction in a criminal case, the accused ‘must be’
guilty and not merely ‘may be’ guilty. For an accused to be guilty,
guilt should not be on mere surmises and conjectures but it
should be based on cogent evidences. In the present case, the
SANJANA
KASANA
accused has successfully rebutted the presumption of
Digitally signed by
consideration by raising a doubt on the very factum of liability of SANJANA
KASANA
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the accused towards the complainant. The accused has clearly
presented a defence that is more probable and as per settled law,
this is all that is required as preponderance of probabilities is not
a rigorous standard of proof, but only so much evidence as makes
the court lean in favour of one side and not the other.
Consequently, the benefit of doubt must go to the accused. The
material on record does not suggest that the accused ‘must be
guilty’, whichever way one looks at it.
30. Since the accused has rebutted the statutory
presumptions, the onus again shifts back upon the complainant,
but the complainant has failed to show how the accused is liable
to pay the amount of the cheque in question. All these facts show
serious discrepancies in the version narrated by the complainant.
One of the essential ingredients, constituting the offence of Sec.
138 NI Act, viz, that accused had issued the cheque in question
and had legal enforceable liability i.e. the second ingredient, to
pay cheque amount in question, was not proved by complainant
beyond reasonable doubt. In the absence of said ingredient
constituting Sec. 138 NI Act, said offence under section 138 NI
Act was not proved by complainant to bring home the guilt of
accused.
31. In view of the above considerations, this Court holds
that the complainant has failed to prove all the ingredients
necessary to constitute the offence under section 138 of NI Act.
The accused has succeeded to prove that the cheque was not
given to the complainant in discharge of any existing legal debt
or liability. In the result of the analysis of the present case, SANJANA
accused is hereby acquitted of the offence punishable under
KASANA
Digitally signed by
SANJANA KASANA
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
Section 138, Negotiable Instruments Act, 1881 qua the cheque in
question.
CONCLUSION:
32. To recapitulate the above discussion, the
complainant has failed to establish his case beyond reasonable
doubt with the aid of presumptions of law raised in his favor
under section 118 and 139 of the NI Act or by any other
evidence. In the result of the analysis of the present case,
accused Pushpa Devi stands acquitted of the offence
punishable under Section 138, Negotiable Instruments Act,
1881.
33. This judgment contains 15 pages. This judgment has
been signed and pronounced by the undersigned in open court.
Copy be given dasti. Digitally signed
by SANJANA
SANJANA KASANA
KASANA Date:
2026.07.21
16:35:13 +0530
Announced in the open Court (SANJANA KASANA)
on 21.07.2026 JMFC(NI ACT) ,
North East, Kkd Courts,
Delhi
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Mukesh Kumar vs Pushpa Devi JMFC(NI Act)/NE/KKD
