CRL.A. 850/2004 Page 1 of 16

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 06.04.2026

Judgment pronounced on: 16.04.2026

+ CRL.A. 850/2004

DEVASHISH BHARDWAJ & MUKHOPADHYAYA.....Appellant

Through: None.

versus

STATE .....Respondent

Through: None.

CORAM:

HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA

JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. This jail appeal under Section 383 of the Code of

Criminal Procedure, 1973 (the Cr.P.C.) has been filed by accused

no. 2 (A2) in C.C. No. 174/2002, C.C. No. 175/2002, C.C. No.

229/2002, C.C. No. 230/2002, C.C. No. 310/2002 and C.C. No.

311/2002 on the file of the Court of the Additional Sessions Judge,

Patiala House Courts, New Delhi challenging the conviction

entered and sentence passed against him for the offence punishable

CRL.A. 850/2004 Page 2 of 16

under Section 138 of the Negotiable Instruments Act, 1881 (the NI

Act).

2. PW1, the complainant, filed a complaint alleging the

commission of the offence punishable under Section 138 of the NI

Act before the Metropolitan Magistrate, Delhi. On going through

the trial records, I find order dated 05.04.2002 of the Magistrate,

which reads thus:-

“Vide order dated 21.3.2002 bearing No.

336/Gaz/VI.E.2(a)/Misc the case stands transferred to the

Court of Shri C.K. Chaturvedi Ld. A.S.J. Parties to appear the

said court at 12. Noon today.

M.M.”

3. Letter no. 336/Gaz./VI.E.2(a)/Misc referred to reads:

"MOST IMMEDIATE AT ONCE

CONFIDENTIAL

No._ 336 /Gaz./VI.E.Z(a)/Misc.

From:

The Registrar (Vigilance)

High Court of Delhi New Delhi.

CRL.A. 850/2004 Page 3 of 16

To

The District & Sessions Judge Delhi.

New Delhi, dated, the 15 March, 2002

Sub:

Regarding expeditious Section disposal of cases under 138 Negotiable

Instruments Act

Sir, I am directed to refer to your letter No.141/Stt./Crl. dated 8.1.2002

on the above subject, and to say that Hon'ble the Chief Justice and

Hon'ble Judges of this Court have been pleased to decide that all the

cases triable under Section 138 of the Negotiable Instruments Act,

pending as on 31.12.2001 in the Courts of various Metropolitan

Magistrates in Tis Hazari Court, Patiala House Court and

Karkardooma Court, be withdrawn Court and transferred to the Courts

of Additional District and Sessions Judges as follows: -

...

xxx

...

Their Lordships have further been pleased to order that you may

distribute such cases amongst the Additional District and Sessions

Judges in equal number as practicable. However, Mr.C.K.Chaturvedi

will be given lesser number of cases.

I am, therefore, to request you to kindly take necessary action in the

matter under intimation to this Court.”

(Emphasis Supplied)

CRL.A. 850/2004 Page 4 of 16

4. In compliance with the aforesaid order, the cases were

transferred to the court of the Additional Sessions Judge, who

conducted the trial of the case and passed the impugned judgment.

The parties in this appeal will be referred to as described in the

complaint.

5. In the complaint it is alleged thus:-complainant no. 2 is

the proprietor of complainant no. 1, engaged in the business of

manufacturing, supplying, importing, and exporting textiles and

ready-made garments. A2 is the proprietor of M/s Rikka

Incorporated, namely, accused no. 1 (A1). A2 approached the

second complainant for supply of goods, which were duly

supplied. Thereafter, A2 issued six cheques bearing no. 260633,

260634, 260641, 260642, 260644 and 260645 for a total sum of

₹6,49,296/-, drawn on Vijaya Bank, Greater Kailash-II, New

Delhi, towards the cost of the goods supplied. The cheques were

signed by A2 in his capacity as proprietor, while assuring that the

CRL.A. 850/2004 Page 5 of 16

cheque would be encashed upon presentation, as there was

sufficient balance in his account. The complainant presented the

cheques before Canara Bank, East of Kailash, New Delhi, for

encashment. However, the cheques were dishonoured and returned

vide return memo with the remark “Insufficient Funds.” Upon

receiving this information, the complainant issued a registered

notice dated 25.06.1997 demanding payment of the cheque

amount. The notice was duly served upon the accused on

30.06.1997. Despite service of the notice, the accused failed to

make payment of the cheque amounts within the statutory period

of 15 days. The accused have so far not repaid the cheque amount,

and hence the complaint.

6. On appearance of A2 before the trial court, the

substance of the accusation as contemplated under Section 251

Cr.P.C. was read over and explained to A2, to which he pleaded

not guilty.

CRL.A. 850/2004 Page 6 of 16

7. On behalf of the complainant, PWs. 1 to 3 were

examined and Exts. PW2/A-B, PW2/C1 to C6, PW2/D1 to D6, and

PW3/A were marked in support of the case.

8. After the close of the prosecution evidence, A2 was

questioned under Section 313(1)(b) Cr.P.C. regarding the

incriminating circumstances appearing against him in the evidence

of the prosecution. A2 submitted that he has been falsely

implicated in the case in place of one Surinder Kumar Aggarwal,

with whom the second complainant had actual dealings and whose

office address was B-93, Okhla Phase-II, New Delhi. He submitted

that when the second complainant was unable to trace the said

Surinder Kumar Aggarwal, he was wrongly substituted and falsely

arrayed as an accused.

9. A2 did not adduce any oral or documentary evidence.

10. On consideration of the oral and documentary evidence

and after hearing both sides, the trial court, vide the impugned

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judgment and order on sentence, found A2 guilty of the offence

punishable under Section 138 of the NI Act and hence, sentenced

him to undergo rigorous imprisonment for a period of one year in

each of the case along with a total fine of ₹13,80,000/- and in

default of payment of fine, to undergo simple imprisonment for

one year. The sentences have been directed to run concurrently.

11. The only point that arises for consideration in this

appeal is whether the conviction entered and sentence passed

against the appellant/A2 by the trial court are sustainable or not.

12. At this stage, it is important to note that there was no

representation for either side when the matter was taken up for

hearing. As per order dated 18.12.2025, Advocate Deeparghya

Datta was appointed as Amicus Curiae to represent the appellant.

However, there was no representation on behalf of the appellant

when the matter was taken up for hearing on 05.02.2026,

11.03.2026, 24.03.2026 and on 06.04.2026. The case is of the year

CRL.A. 850/2004 Page 8 of 16

2004. Sufficient opportunity had already been granted. Hence, this

Court was not inclined to adjourn the case. As held by the Hon’ble

Supreme Court in Bani Singh &Ors. v. State of U.P., (1996) 4

SCC 720, this Court is not precluded from deciding the appeal on

merits despite such non-appearance, as an appeal cannot be kept

pending indefinitely. Accordingly, this Court proceeds to consider

the appeal on merits after going through the entire records in the

case.

13. Complainant no. 2, when examined as PW1, reiterated

the case in his complaint. He deposed that A2 had disclosed his

name as Surinder Kumar Aggarwal, which fact is also stated in the

registered letter dated05.06.1997 received by him from the latter.

He had lodged a complaint at the Garhi police post, and when A2

was summoned, the latter moved an application for anticipatory

bail through his counsel. The said court directed A2 to furnish his

name and address, pursuant to which his counsel provided the

CRL.A. 850/2004 Page 9 of 16

same to the investigating officer in the said case vide letter dated

06.08.1997. From the said letter, it was revealed that A2hadtwo

other names also, namely, D. Mukhopadhyaya and Debashish

Mukherjee, a fact previously unknown to him.

13.1. PW1, in his cross-examination, deposed that at the time

of filing the complaint, he knew A2 by the name of Surinder

Kumar Aggarwal. He came to know about the actual name of A2

only when the court directed him to disclose his name in pursuance

of his anticipatory bail application. A2 had come to him personally

for the first time in the year 1996–1997. He has maintained proper

records regarding the transactions, which could be verified from

the records. He does not know any person by the name of Surinder

Kumar Aggarwal except the accused, who used to represent

himself by that name. He denied the suggestion that the accused

present in the court had no dealings with him or that his dealings

were with one Surender Aggarwal. He further denied the

CRL.A. 850/2004 Page 10 of 16

suggestion that he had not delivered any goods/articles to the

accused or that the accused had not issued the cheque in question

towards the said goods/articles. He also denied the suggestion that

he had deposed falsely or that he was seeing the accused for the

first time in court.

14. PW2, Senior Assistant, Vijaya Bank, Greater Kailash

Part-II, New Delhi, produced the record relating to Current

Account no. 227 of M/s Rikka Inc. (A1) and the certified copy of

the cheque book issue register. As per the said record, cheque book

containing cheque leaf nos. 260626 to 260650 were issued to M/s

Rikka Inc. (A1) and were received by the proprietor of the said

Firm. PW2 deposed that as per records, cheque nos. 260633,

260634, 260642 and 260644 were returned on 12.06.1997, and

cheque nos. 260641 and 260645 were returned on 19.06.1997, all

for the reason “insufficient funds.” On 12.06.1997, as per

statement of account No. CA-227 of M/s Rikka Inc. (A1), the

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opening balance was ₹6,894.25/-, and on 19.06.1997, the balance

was ₹969.25/-. When the cheques were presented for encashment

through Canara Bank, they were returned due to insufficient funds

in the account of M/s Rikka Inc (A1).

14.1 PW2, in his cross-examination, deposed that he could

not say who was the proprietor of M/s Rikka Inc.(A1), though

account no. CA-227 was opened on 07.04.1997. He reiterated that

as per records, cheque Nos. 260633, 260644, 260634 and 260642

had been returned on 12.06.1997, and cheque Nos. 260645 and

260641 returned on 19.06.1997. He denied the suggestion that on

19.06.1997, no memo was issued by the bank or that he was

deposing falsely.

15. PW3, Officer, Canara Bank, East of Kailash, New

Delhi, produced the record in respect of Account No. 5370 of

complainant no. 1. As per the record, cheque Nos. 260645 and

260641 were deposited on 17.06.1997 and were returned on

CRL.A. 850/2004 Page 12 of 16

18.06.1997. He confirmed that all six cheques were returned

unpaid and the same were sent back to the complainant.

15.1 PW3 was not cross-examined.

16. The offence under Section 138 of the NI Act is

committed when a person issues a cheque to pay a legally

enforceable debt or liability and the cheque is returned unpaid by

the bank due to insufficient funds or because it exceeds the

arranged amount. The further ingredients are that the cheque

should be presented within a period of six months from the date on

which it is drawn or within the validity period; the payee must

send a written legal notice within thirty days of receiving

information about its dishonour; and the drawer fails to make

payment within fifteen days of receiving the notice.

17. The complaint sets out all the foundational ingredients

required under Section 138 of the Act. It establishes that the

second complainant, engaged in the business of textiles and

CRL.A. 850/2004 Page 13 of 16

garments, had supplied goods to A2, who, in discharge of his

liability, issued six cheques, all drawn on Vijaya Bank. The

cheques, upon presentation within its validity period, was

dishonoured with the remarks “insufficient funds.” Thereafter, a

statutory notice dated 25.06.1997 was issued and duly served upon

A2 on 30.06.1997, but despite expiry of the statutory period of

fifteen days, no payment was made.

18. The issuance of the cheques in question and its

dishonour stands proved by the evidence on record. Ext. PW2/E

account statements further demonstrate that the balance in the

account was negligible at the relevant time, thereby confirming the

reason for dishonour. A2 has not disputed the existence of the

account or the issuance of the cheques in any substantive manner,

nor has he led any evidence to show that the cheques did not

belong to him or his Firm. The testimony of PW2 and PW3

independently corroborates the presentation and dishonour of the

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cheques. The entries in Ext. CW2/1 and Ext. PW3/A statement of

account clearly reflect the deposit and return of the cheques

amounts, thereby completing the chain of events.

19. The only defence taken by A2 is that he has been

falsely implicated in the present case and that complainant no. 2

had actual dealings with another person, namely, Surinder Kumar

Aggarwal, and not with him. It is contended that when

complainant no. 2 was unable to trace the said person, the

appellant has been wrongly substituted in his place and made an

accused in the case. A2 thus denies having any business

transactions with the complainant, disputes his liability, and claims

that he did not issue the cheques in question towards any legally

enforceable debt or liability. PW1, in his testimony, categorically

stated that he had dealings with the accused, who used to represent

himself as Surinder Kumar Aggarwal and that he came to know of

his real identity only during the court proceedings when, pursuant

CRL.A. 850/2004 Page 15 of 16

to the anticipatory bail application, A2 was directed to disclose his

correct name and particulars. There is no explanation as to why

PW1 would name A2 in his complaint instead of the actual

offender. A2 in his Section 313(1)(b) Cr.P.C statement submitted

that the signature and writings on Ext. CW3/1 letter are not his. He

could not recall if Ext. CW3/6, the anticipatory application was the

same as the one he moved due to lapse of time and denied the

signatures in Ext.CW3/6. Merely stating that he does not recall the

application due to lapse of time does not disprove the document,

especially when he admits that he had filed an anticipatory bail

application. His mere denial of the signatures in Ext. CW3/6 is

also of no consequence in the absence of any supporting evidence.

On the contrary, a perusal of Ext. CW3/6 shows that the

application pertains to A2.

20. The case of PW1 relating to the payment of the amount

and execution of the cheque by A2 stands proved. The burden then

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shifts on A2 to rebut the presumption contained under Section 139

of the NI Act. However, A2 never adduced any evidence

whatsoever, either oral or documentary, to substantiate his plea of

false implication or mistaken identity. A bare denial in the

statement under Section 313 Cr.P.C. is insufficient in law to rebut

the presumption.

21. As the evidence on record clearly proves the case of

PW1, I find that the trial court was right in concluding that an

offence under section 138 of the NI Act has been committed by the

accused. Therefore, there is no infirmity calling for an interference

from this Court.

22. The appeal sans merit is dismissed.

23. Applications(s), if any, pending stand closed.

CHANDRASEKHARAN SUDHA

(JUDGE)

APRIL 16, 2026