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
2. The case in brief of the complainant/appellant is that in
Digitally August 2018, accused/respondent approached the
signed by
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complainant and requested her to advance loan of Rs.7
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Santosh Kumari vs Robin Singhlakhs 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
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the said period from the date of service of the notice, the
signed by
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Santosh Kumari vs Robin Singhpresent 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
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Ashish made all the payments to the son of the complainant
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Santosh Kumari vs Robin Singh
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
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committed error in holding that the financial capacity of the
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complainant to lend the loan amount was challenged by the
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Santosh Kumari vs Robin Singhrespondent 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
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by not appreciating that it was the case of reverse burden
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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,
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the judgment cannot be said to have been vitiated. (See
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in this connection the very cases cited at the Bar, namely,
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Surajpal Singh v. State; Wilayat Khan v. State of U.P.) In
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our opinion, there is no substance in the contention raised
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Santosh Kumari vs Robin Singhon 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”,
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“glaring mistakes”, etc. are not intended to curtail
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extensive powers of an appellate court in an appeal
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against acquittal. Such phraseologies are more in the
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Santosh Kumari vs Robin Singhreluctance 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
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interdicted and the High Court cannot supplant over the
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view of the trial court.”
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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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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
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shall apply unless–(a) the cheque has been
signed by
Ashish presented to the bank within a period of six
Ashish Rastogi
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within the period of its validity, whichever is
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Santosh Kumari vs Robin Singhearlier;
(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
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and before its maturity;
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(d) as to time of transfer: –that every transfer of a
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negotiable instrument was made before its maturity;
(e) as to order of endorsements: –that the endorsements
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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.
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5. Failure to Make Payment: If the drawer fails to
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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
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presume” in Section 4 of the Evidence Act are also
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categories of presumptions. Factual presumptions or
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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
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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
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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
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the accused has successfully rebutted the said presumption
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Santosh Kumari vs Robin Singhthe 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 conflictingCA No.178/2025 16 of 20
Santosh Kumari vs Robin Singhstand 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 Singhstatements 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 Singhfourth 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
DigitallyHon’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 SinghDelhi 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
+0530CA No.178/2025 20 of 20
