1. The present Judgment is a result of culmination of trial initiated on the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (Hereinafter referred to as " NI Act ") by the complainant, Mr. Pradeep Kapoor against the accused, Mr. Ajay Mehra.

BRIEF FACTS OF THE CASE

2. The adumbrated version of complainant is that accused approached the complainant in March, 2015 for a friendly loan of Rs. 5,00,000/-. Thereafter, on the assurance of accused, complainant advanced the said sum in cash. In this regard, a promissory note Mark-A was also executed by the accused. Thereafter, to discharge his liability, accused issued a cheque bearing No. 317463 dated 02.04.2015 amounting to Rs. 5,00,000/-. The said cheque is Ex-CW1/2.

3. Complainant presented the said cheque for encashment to his banker, however, it was returned unpaid with the endorsement "Funds Insufficient" vide return memos dated 24.04.2015 and 30.04.2015 i.e. Ex- CW1/3 and Ex-CW1/4.

4. The complainant, thereafter, sent a legal notice dated 11.05.2015 Ex- CW1/9 to accused. The postal receipts are Ex-CW1/5 and Ex-CW1/6 and tracking reports are Ex-CW1/7 and Ex-CW1/8.

5. On summoning, accused entered his appearance and it was duly ensured that accused has received the copy of complaint along with relevant documents. Thereafter, notice under section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as " CrPC ") was framed against accused on 22.11.2016. The contents of notice were read over and Pradeep Kapoor Vs. Ajay Mehra Digitally [CC No. 537485/2016] signed by PRANJAL PRANJAL GANGWAR GANGWAR Date:

6. In plea of defence, accused stated that he and his brothers decided to pool Rs. 1 Lac each to purchase a shop. He further stated that his brother Mr. Sanjay Mehra offered to contribute Rs. 1 Lac on his behalf as he was not having sufficient funds. Accused further stated that he executed a bond and issued cheque to his brother. He further stated that he has already paid the amount to his brother. However, due to some property dispute, his brother gave cheque in question to the complainant. Furthermore, accused has admitted that cheque in question bears his signature. Thereafter, accused was granted opportunity to cross-examine the complainant and matter was fixed for complainant evidence.

COMPLAINANT EVIDENCE

7. During the trial, complainant has led both oral and documentary evidence to prove the case beyond reasonable doubt. Complainant stepped in witness box as CW-1 and adopted his affidavit of pre-summoning as his evidence reiterating almost all facts of complaint, stating all exhibits. CW-1 was duly cross examined by Ld. Counsel for accused. All the suggestions put to complainant were duly denied by him.

8. Thereafter, Mr. Sanjay Mehra was examined as CW-2. CW-2 was duly cross examined by Ld. Counsel for accused. All the suggestions put to complainant were duly denied by him.

9. Thereafter, vide separate statement of complainant dated 24.07.2019, CE was closed and matter was fixed for recording of statement of accused.

10.The statement of accused was recorded under Section 313 of Cr. P.C. read with Section 281 Cr.P.C. on 25.09.2019. All the incriminating evidences were put to accused. At this stage, accused reiterated almost same defence that was taken by him during his plea of defence. Thereafter, accused opted to lead defence evidence.

DEFENCE EVIDENCE

11.To support his version, accused examined Mr. Rajkumar, Ahlmad in the court of Ms. Aneeza Ompal Shokeen Ld. CJ-06, Central, THC as DW-1. In his examination DW-1 produced the certified copy of suit bearing No. 593516/16 titled as Ajay Mehra Vs. Sanjay Mehra . The same is Ex- DW1/1. Due opportunity to cross-examine the witness was given to Ld. Counsel for complainant, however, he opted not to cross-examine the said witness.

12.Thereafter, Mr. Kaushal Kishore, JJA in the court of Ms. Geetanjali, Ld. ADJ-03, Central, THC was examined as DW-2. In his examination DW-2 produced the certified copy of suit bearing No. 618859/16 titled as Sanjay Mehra Vs. Ajay Mehra . The same is Ex-DW2/1. Due opportunity to cross-examine the witness was given to Ld. Counsel for complainant, however, he opted not to cross-examine the said witness.

13.Thereafter, vide separate statement of accused dated 05.07.2023, DE was closed and the matter was fixed for final arguments.

FINAL ARGUMENTS

14.Ld. Counsel for complainant has argued that complainant had advanced Rs. 5,00,000/- to the accused and in this regard, promissory note has also been filed. Ld. Counsel further argued that loan in question has also been Pradeep Kapoor Vs. Ajay Mehra Digitally signed by [CC No. 537485/2016] PRANJAL PRANJAL GANGWAR GANGWAR Date:

15.On the other hand, Ld. Counsel for accused has argued that legal demand notice in the present case is defective. He further stated that complainant did not mention the correct cheque number in the legal demand notice, hence, the same is bad in law. Ld. Counsel for accused further argued that the date on which ITR was filled was after the date when the cross- examination of complainant was deferred, hence, complainant has deliberately mentioned the same in his ITR to show the liability of accused in the present matter. Ld. Counsel for accused further argued that complainant did not place on record the original promissory note, hence, the said photocopy cannot be read into evidence. He further stated that complainant has also not mentioned the date on which loan in question was advanced or the date when promissory note was signed. Ld. Counsel further argued that defence of the accused has been consistent throughout the course of trial, hence, on the basis of preponderance of probability, accused has proved his defence. He, therefore, argued that accused is entitled to be acquitted.

16.I have perused the case file, documents placed on record by both the parties and duly considered the submission made by Ld. Counsel for complainant and accused.

Pradeep Kapoor Vs. Ajay Mehra [CC No. 537485/2016] Digitally signed by PRANJAL GANGWAR PRANJAL GANGWAR Date:

17.Before delving into discussion over the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides in trial of offence under Section 138 NI Act. In Gimpex Private Limited vs. Manoj Goel1 Hon'ble Supreme Court has divided the ingredients forming the basis of the offence under Section138 of the NI Act in the following structure:

APPRECIATION OF EVIDENCE

18.The accused can be held guilty of the offence under Section 138 NI Act only if the above-mentioned ingredients are proved by the complainant co-extensively. Moreover, conditions stipulated under Section 142 NI Act have to be fulfilled in addition to above-mentioned ingredients. Hence, 1 (2022) 11 SCC 705 (Decided on October 08, 2021) Pradeep Kapoor Vs. Ajay Mehra PRANJAL [CC No. 537485/2016] GANGWAR Digitally signed by PRANJAL GANGWAR Date: 2025.11.14 15:49:28 +0530 Page 7 of 13 unless all these conditions are fulfilled, accused cannot be convicted under Section 138 NI Act.

With Respect To First, Third And Fourth Ingredient:

19.It is pertinent from the pleadings and evidence that complainant has proved the original cheque Ex-CW1/2, which the accused had not disputed as being drawn on the account maintained by him. Accused, during framing of notice under Section 251 CrPC has admitted that cheque in question bears his signature. It was not disputed that cheque in question was not presented within period of validity.

20.The cheque in question was returned unpaid vide return memos Ex-

CW1/3 and Ex-CW1/4 for reasons 'Funds Insufficient'. The said reason for dishonour is duly covered within the scheme of Section 138 NI Act. Therefore, requirement of first, third and fourth ingredients stand fulfilled in the present matter.

With Respect To fifth and sixth Ingredient:

21.In case of CC Alavi Haji Vs. Palapetty Muhammed2 Hon'ble Supreme Court has held that giving a legal notice to the drawer before filing of complaint under Section 138 of NI Act is a mandatory requirement. Accused during the stage of framing of notice under Section 251 Cr.P.C and statement under Section 313 Cr.P.C has stated that he had received the legal demand notice.

22.Therefore, the court finds that the legal demand notice in the present case has been successfully served to the accused on his address. Furthermore, it is also clear from the record that accused had failed to make the 2 2007 6 Supreme Court Cases 555 (Decided on May 18, 2007) Pradeep Kapoor Vs. Ajay Mehra Digitally [CC No. 537485/2016] signed by PRANJAL PRANJAL GANGWAR GANGWAR Date:

23.However, Ld. Counsel for accused has taken an objection that legal demand notice is not valid as the cheque number is mentioned incorrectly. He further stated that in the legal demand notice placed on record, cheque number has been altered. To support his contention that legal demand notice is defective, Ld. Counsel for accused relied upon the judgments of Mohamad Irfan vs. Velukannan3 , M. R. Choudhary Vs. State of Rajasthan4 , N Hariharan Krishnan Vs. J Thomas5 , Charanjeet Singh Vs. Kulwant Singh6 and Mahdoom Bawa Bahrudeen Noorul vs. Kaveri Platics7 .

24.Perusal of the record shows that during the cross-examination of complainant, the copy of notice Mark-X, that was received by the accused, was shown to the complainant. Since, the original legal demand notice is in the possession of the complainant, the said photocopy produced by the accused shall be read into evidence. During cross- examination, CW-1 denied the suggestion that wrong cheque number has been mentioned to intentionally confuse the accused. Perusal of the legal demand notice Ex-CW1/9 shows that at point A, last digit of the cheque number has been altered. In mark-X produced by the accused, cheque number is written as 3174632, however, the correct cheque number is 317463. Therefore, it is evidently clear that in the legal demand notice sent to the complainant, wrong cheque number has been mentioned by the complainant.

MANU/TN/3604/2016 4 S.B. Criminal Leave to Appeal No. 88/2009 (Decided By Hon'ble Rajasthan High Court on March 28, 2012) 5 (2018) 13 Supreme Court Cases 663 6 CRM-M-54012-2023 (Decided by Hon'ble P&H High Court on January 16, 2025) 7 MANU/DE/1405/2025 Pradeep Kapoor Vs. Ajay Mehra [CC No. 537485/2016] Digitally signed by PRANJAL PRANJAL GANGWAR GANGWAR Date:

25.In this regard, Hon'ble Supreme Court in Kaveri Plastics Vs. Mahdoom Bawa Bahrudeen Noorul referred to the judgment of Hon'ble Punjab and Haryana High Court in Chhabra Fabrics Private Limited vs. Bhagwan Dass8 and observed that:

26.Similarly, in Mohamad Irfan (Supra), Hon'ble High Court of Madras has held that mistake in mentioning the cheque number cannot be said to be an ancillary/incidental or irrelevant/immaterial one. It was further held that incorrect mentioning of the cheque number does not fulfil the requirement of Section 138(b) NI Act.

27.In addition to this, it has been time and again held that NI Act is a penal statute and penal statutes are to be construed strictly and that if conditions are scraped, the courts will insist upon strict literal compliance. Hence, even if it is assumed that the wrong cheque number was mentioned due to typographical mistake, the error even if typographical, would be fatal to the legality of notice.

28.Furthermore, even the cheque amount has not been mentioned in the legal demand notice. Therefore, by legal demand notice, complainant has also failed to inform the total cheque amount. Therefore, the court finds that legal demand notice is not in conformity with the legal requirements and is bad in law.

29.With respect to second ingredient, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt or liability. In the present case, accused at the stage of framing of notice u/s 251 has admitted that cheque in question Ex-CW1/2 bears his signature.

30.As per the scheme of NI Act , once the accused admits signature on the cheque in question, certain presumptions shall be drawn, which lead to shifting of onus on accused. The collective effect of provisions of Section 118 and Section 139 NI Act 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 shows that the presumption provided for in the Act is a 'presumption of law' and makes it imperative for the court to raise such presumptions. In the recent judgment, Kalamani Tex v. P. Balasubramaniyan9 , the larger bench of the Supreme Court, held that:

Reliance in this regard can also be placed upon the judgment of the Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee10 .

31.Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan11 that presumption under these sections is rebuttable in nature and standard of proof required for 9 (2021) 5 SCC 283 10 (2001) 6 SCC 16 (Decided on July 11, 2001) 11 (2010) 11 SCC 441 (Decided on May 07, 2010) Pradeep Kapoor Vs. Ajay Mehra PRANJAL [CC No. 537485/2016] GANGWAR Digitally signed by PRANJAL GANGWAR Date: 2025.11.14 15:50:03 +0530 Page 11 of 13 rebutting the presumption is that of preponderance of probability. To rebut the same, accused can rely upon the material put forth by the complainant or lead his independent evidence. In the instant case, accused has adopted both the avenues to rebut the presumption.

32.In the present case, the case of complainant is that accused approached the complainant for a friendly loan of Rs. 5,00,000/- and the same was duly advanced to him. On the other hand, accused has denied his liability stating that he has never issued the cheque in question to the complainant rather the same was given to his brother Mr. Sanjay Mehra.

33.To support his version, complainant has also placed on record the photocopy of pro-note Mark A. The original of said document was never produced by the complainant. Further, complainant has also not stated the reason for not producing the original document. Hence, the said document has not been produced in accordance with the provision of Section 65 Indian Evidence Act, 1872. Therefore, the said document cannot be read into evidence.

34.Furthermore, during cross-examination, complainant produced his ITRs for the assessment year 2016-2017 Ex-CW1/D1, 2017-2018 Ex-CW1/D2 and for the year 2015-16 Ex-CW1/D3. Complainant also admitted that loan in question has not been shown in the ITR for the period of 2015-16. However, the loan advanced to the accused has been mentioned at point A in the ITR for the assessment year 2016-17. However, perusal of the said ITR shows that it was uploaded on 28.10.2017 i.e. after the date when cross-examination of complainant was deferred for want of ITR. Therefore, mentioning of the same in the ITR appears to be an afterthought. In addition to this, it is also pertinent to mention that loan in question was advanced in March 2015. Therefore, accused could have mentioned the loan advanced in the ITR for the assessment year 2015-

2016. However, the same has not been mentioned. These factors also create a doubt upon the version of complainant.

35.In addition to this, it is the case of complainant that loan in question was advanced for the period of one month. However, the cheque is dated 02.04.2015. Hence, it is also not clear why would the complainant accept the cheque which was issued for the date prior to the expiration of loan period of one month. This fact also creates a doubt upon the version of complainant.

36.Ld. Counsel for accused has also challenged the financial capacity of the complainant to advance the loan in question. During cross-examination, complainant stated that his annual income is Rs. 2,50,000/-. He further stated that he has two daughters namely Ms. Hina Kapoor and Ms. Isha Kapoor. Even the perusal of ITRs filed by the complainant shows that total taxable income of the complainant in the assessment year 2015-16 was Rs. 2,77,280/-. Ld. Counsel for accused has also put suggestion that eviction petition has been filed against the complainant as he was not able to pay the rent of the tenanted premises. However, the suggestion was denied by the complainant.

37.Hence, one the capacity has been challenged, it is for the complainant to prove that he had sufficient funds or the source from where the amount in question was advanced. However, complainant has failed to establish his financial capacity by leading any independent evidence. Hence, on this aspect also, case of the complainant gets weaker.

38.Lastly, accused has also produced the certified copies of the cases pending between him and his brother to support his testimony. Defence of the accused has been consistent throughout the course of trial. Hence, the court finds that accused has successfully rebutted the presumption and has weaken the case of the complainant.

Pradeep Kapoor Vs. Ajay Mehra [CC No. 537485/2016] Digitally signed by PRANJAL PRANJAL GANGWAR GANGWAR Date:

39.The accused, thus, by way of material placed on record by the complainant and the cross examination of CW-1, has punched holes in the case of the complainant. The Hon'ble Supreme Court in Tedhi Singh Vs. Narayan Dass Mahant12 , has held that accused is not expected to discharge an unduly high standard of proof. What is expected from accused is to establish a probable defence and whether the same has been raised, has to be decided on the conspectus of the existing evidence. The same would also be considered on the particular facts and circumstances of each case.

40.To recapitulate the above discussion, the accused has succeeded in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under section 118 and 139 of the NI Act by punching the holes in the case of the complainant and making the case of the complainant doubtful. The accused has, thereby, succeeded to prove that the cheque was not given in discharge of existing legal debt or liability. In the result of the analysis of the present case, accused Sh. Ajay Mehra S/o Late Sh. Kishan Mehra, is hereby acquitted of the offence punishable under Section 138 , Negotiable Instruments Act, 1881.

41.This judgment contains 13 pages and each page bears the signature of the undersigned.

42.Copy of the judgment be uploaded as per rules. Digitally signed by PRANJAL Pronounced in an open court today. PRANJAL GANGWAR GANGWAR Date: