Delhi District Court
Delhi In The Matter Of "Rajesh Agarwal vs . State & Anr." Passed On July 28, 2010, ... on 28 June, 2012
IN THE COURT OF SH. HARVINDER SINGH,
SPECIAL METROPOLITAN MAGISTRATE - 05,
DWARKA COURTS, NEW DELHI.
Satin Credit Care Network Limited
through its Authorized Representative
Sh. Shyam Sunder ....................Complainant
Versus
Rajesh Kumar ....................Accused
C.C.NO.18931/10 dated 28.05.2010
PS - Adarsh Nagar
under Section 138 of Negotiable Instrument Act,
1881
a) Sl. No. of the case : 18931/10
b) Alleged date of commission of : 24.04.2010 Approximately
offence
c) Name of the complainant : Satin Credit Care Network Limited
d) Name of the accused, and his : Rajesh Kumar
S/o Sh. Suresh Chand,
R/o 4321, Gali Bharon Wali, Jogi Wada,
Nai Sadak, Delhi - 110 006.
e) Offence complained of : under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Acquittal
h) Date of such order : 28.06.2012
i) Brief
statement of the reasons for the decision :
1.By way of this judgment, I shall dispose of complaint under Section 138 of Negotiable Instruments Act, 1881 filed by the complainant i.e. Satin Credit Care Network ......................Contd/ : 2 : Limited through its authorized representative Sh. Shyam Sunder against the accused Rajesh Kumar S/o Sh. Suresh Chand R/o 4321, Gali Bharon Wali, Jogi Wada, Nai Sadak, Delhi - 110
006.
2. The brief facts of this case as per allegations of the complaint are that the complainant i.e. Satin Credit Care Network Limited is a company duly incorporated and registered with the Registrar of Companies and it is a Non Banking Financial Institution duly registered with Reserve Bank of India and further that it is engaged in business of leasing and financing the vehicles and consumer durables goods & Personal Loan to its clients, under the monthly or daily installments collection schemes on mutually agreed terms and conditions. The accused approached the complainant and availed personal loan under Personal Loan Agreement no.F7223 for a sum of Rs.62,280/. The payment schedule under the said agreement was on the basis of daily installments of Rs.173/ each for 360 days. The accused person after making initial payments towards daily installments, later started violating terms and conditions of the abovesaid agreement and the accused person after paying a few installments stopped making the payments, in contravention to the terms and conditions of the abovesaid agreement. The accused despite repeated reminders and requests by the complainant, avoided the legal demand to clear the legally recoverable dues. While scrutinizing the account details, it was noticed by the complainant that it was entitled to recover a sum of Rs.93,758/ from the accused and accordingly, issued notice dated ......................Contd/ : 3 : 12.03.2010 to the accused to pay the outstanding amount. After receiving the aforesaid notice, accused came and settled the matter for a sum of Rs.93,758/ and accordingly, the accused issued a cheque bearing number 100970 dated 28.04.2010 drawn on The Vaish Cooperative Commercial Bank Limited, Nai Sarak, Delhi of Rs.93,758/ in the favour of complainant towards the discharge of legal debt and liability and towards the discharge of payment of legally recoverable debt. The said cheque was presented by the complainant and the same returned unpaid due to the reasons "Funds Insufficient" vide cheque returning memo dated 31.03.2010. Then, complainant sent the registered legal notice dated 07.04.2010 vide registered post and UPC on 08.04.2010 to the accused person to clear the outstanding amount within 15 days of the receipt of the legal demand notice. The accused person despite the service of the legal notice have failed to make/clear the payment as demanded under the said legal notice within the statutory period prescribed therein. Accordingly, this complaint was filed by the complainant on 20.05.2010.
3. After filing of complaint, authorized representative of the complainant namely Sh. Shyam Sunder led his presummoning evidence by way of affidavit and after hearing Ld. Counsel for complainant, summoning order was passed against the accused vide order dated 28.05.2010 and after the appearance of accused person, a separate notice under Section 251 of Cr. P.C was put to the accused on 05.03.2011 to which accused person pleaded not guilty and claimed trial, thereafter, in accordance with the judgment passed by Hon'ble High Court of ......................Contd/ : 4 : Delhi in the matter of "Rajesh Agarwal Vs. State & Anr." passed on July 28, 2010, the matter was fixed for DE/application under Section 145 (2) Negotiable Instrument Act, 1881, if any/further proceedings for 19.04.2011. After that, the accused moved an application under Section 145 (2) N. I. Act, 1881 on 18.05.2011 and the same was allowed on 25.05.2011 as was not opposed by the Ld. Counsel for the complainant and thereafter, the matter was fixed for CE and crossexamination.
4. To prove the case of complainant, Sh. Shyam Sunder, AR of the complainant got examined himself as complainant witness and adopted his affidavit Ex.CW1/1 of pre summoning evidence as examinationinchief of post summoning evidence and relied on the documents already exhibited in presummoning evidence i.e. Ex.CW1/A to Ex.CW1/D (Collectively) and on documents marked 'A' to 'D' and further reiterated the contents of the complaint on oath before this Court. The extract of the minutes of the meeting of the board of directors is exhibited as Ex.CW1/A, original cheque as Ex.CW1/B, cheque returning memo as Ex.CW1/C, legal demand notice, original postal receipt and registered AD are marked as mark 'E' (Collectively), the Power of Attorney of Sh. Shyam Sunder is marked as mark 'A', certificate of incorporation is marked as mark 'B' (Collectively), certificate of registration is marked as mark 'C', Personal Loan Agreement is marked as mark 'D'. Thereafter, the witness of the complainant was cross examined by Sh. Sumit Sarna, Ld. Counsel for the .......................Contd/ : 5 : accused in length. After crossexamination, complainant's evidence was closed on the statement of the AR of the complainant on 20.07.2011. Thereafter, on 09.08.2011, the Ld. Counsel for the accused person filed an application under Section 311 of Cr. P.C. for recalling of CW1 for further crossexamination. The said application was allowed on 20.08.2011 on the nonobjection by the Ld. Counsel for the complainant and after further crossexamination, complainant's evidence was closed on the statement of the AR of the complainant on 01.12.2011.
5. After that the statement of accused was recorded under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. in which all incriminating evidence alongwith exhibited documents were put to the accused Rajesh Kumar in which he stated that he did not approached the complainant and did not avail personal loan of Rs.62,280/ vide loan agreement number F7223 dated 19.09.2007 as alleged by the complainant, however, he had taken a loan of Rs.50,000/ only from the complainant. It was admitted by the accused person that cheque in question bears his signatures, but, stated that the cheque in question was a security cheque given by him as blank signed cheque which has been misused by the complainant as he was making regular payment of EDIs to the complainant in cash. The accused person submitted that he does not remember whether any Legal Demand Notice was received by him or not as alleged by the complainant. In answer to another question, whether the cheque was dishonored vide returning memo Ex.CW1/C with the reasons "Funds ......................Contd/ : 6 : Insufficient", the accused stated that it is correct. In answer to another question, the accused person submitted that the document mark 'F' is a false and fabricated document prepared by the complainant and is inadmissible against him and the document Ex.CW1/F is also a false and fabricated document and further that he had been making payments to the complainant in cash and most of his payments made in cash are not reflected in document Ex.CW1/F. In answer to another question, the accused person submitted that the present AR of the complainant is not authorized person to depose on behalf of the complainant and he has given false evidence against him and further submitted that he had already repaid the loan and the complainant has filed this case only to recover illegal undisclosed penalties imposed upon him. In answer to another question in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C., the accused stated that he wants to lead defence evidence. Thereafter, the matter was fixed for defence evidence.
6. The accused moved an application under Section 315 of Cr. P.C. on 05.03.2012 and the same was considered and allowed on 05.03.2012 itself. The accused person examined himself as DW1 in his defence evidence and deposed on oath that he had taken a loan of Rs. 50,000/ from the complainant bank in the year 2007 and the same was to be repaid on daily basis installments of Rs.173/ each in 360 days. The accused person further deposed that collection agents of the complainant used to come daily at his shop for collection of equated daily installments and did not use to give receipts for payment of installments. The accused person further deposed that the cheque in question is a security cheque which has been ......................Contd/ : 7 : misused by the complainant as he had already paid all the installments of the complainant in cash and nothing is due against him and he had no liability towards the complainant qua cheque in question. Thereafter, the accused person was crossexamined by the Ld. Counsel for the complainant in length. The defence evidence was closed by the orders of this Court on the submissions made by the proxy counsel for the accused and thereafter, the matter was fixed for final arguments.
7. I have heard Ld. Counsels for both the parties and I have also perused the entire record of the case file and evidence on record.
8. Following Points arise for determination by this court :
(1) Whether complainant has proved on record the essential ingredients of offence under Section 138 of Negotiable Instruments Act, 1881 against the accused.
(2) Final order.
9. Point No. (1) - To decide this point lets analyze the main ingredients of Section 138 of Negotiable Instrument Act, 1881 and the evidence on record regarding these ingredients :
(a) Whether the cheque was drawn/issued by the accused person to the complainant on an account maintained by him with the bank for discharge, in whole or in part, of any debt or other liability?
......................Contd/ : 8 :
(b) Whether the cheque was presented to the bank within a period of six months or within period of its validity?
(c) Whether the cheque so presented for encashment was dishonored?
(d) Whether the payee/complainant of the cheque issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque?
(e) Whether drawer of the cheque failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice?
It is pertinent to mention here that the complainant has to prove all the above ingredients simultaneously on record to bring home the conviction of the accused person.
The AR of the complainant has deposed in examinationinchief in para no.04 of the affidavit Ex.CW1/1 that the accused approached the complainant and availed the personal loan vide Personal Loan Agreement number F7223 dated 19.09.2007 of Rs.62,280/ and the loan was to be repaid in 360 equated daily installments of Rs.173/ each and further that the accused after making initial payments towards daily installments stopped making payment of installments. The AR of the complainant further deposed in para no.05 of the affidavit Ex.CW1/1 that on scrutiny of account details of the accused person it was noticed that the complainant was entitled to a sum of Rs.93,758/ from the accused and the complainant issued a notice dated 12.03.2010 to the accused to pay the outstanding amount. It is further deposed in para no.06 of the affidavit Ex.CW1/1 that after receiving of aforesaid notice, accused came and admitted his liability and settled the matter after due calculations .......................Contd/ : 9 : and negotiations for sum of Rs.93,758/ and issued cheque in question to pay the abovesaid debt and liability towards the complainant. It is further deposed in para no.06 of the affidavit that on presentation the cheque in question was dishonored vide cheque returning memo Ex.CW1/C due to the reason "Funds Insufficient". It is further deposed in para no.07 of the affidavit Ex.CW1/1 that the complainant issued legal demand notice dated 07.04.2010 vide registered post and UPC sent on 08.04.2010, thereby demanding the payment of the outstanding amount within 15 days of receipt of notice. It is further deposed in para no.07 of affidavit Ex.CW1/1 that the accused failed to make the payment within statutory period.
On the other hand, the accused person has deposed in his defence evidence that he has taken a loan of Rs.50,000/ from the complainant in the year 2007 to be repaid in 360 daily equated installments of Rs.173/ each. The accused person further deposed in his defence evidence that the collection agents of the complainant used to come daily at his shop for collection of daily equated installments and do not used to give receipts of payments of installments. The accused further deposed in defence evidence that he has paid all the installments of the complainant in cash and nothing is due against him. The accused person further deposed that the complainant has misused the security cheque and further that he has no liability towards the complainant.
As per oral submissions, notice under Section 251 of Cr. P.C., statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. and evidence on record, the accused person has taken following defences in this case : ........................Contd/ : 10 :
1. That the AR of the complainant is not an authorized person to depose on behalf of the complainant as Power of Attorney in favour of the AR of the complainant is not valid one.
2. That the complainant has misused the blank signed security cheuqe given by him to the complainant and the complainant itself presented the cheque in question after filling up all the particulars.
3. That he has no liability towards the complainant qua cheque in question as he has already paid the whole of the amount of the complainant and the complainant has itself presented the cheque in question to recover illegal undisclosed penalties imposed upon him.
4. That he has not received any legal demand notice.
Now, this Court is considering the 1st defence of the accused that the present AR of the complainant is not authorized to depose on behalf of the complainant and the Power of Attoney mark 'A' in favour of the AR of the complainant is not valid one. In this case, during the crossexamination of AR of the complainant, the accused person has taken the defence that executants of document mark 'A' Sh. H. P. Singh, Chairman cum Managing Director and Sh. Jugal Kataria, CFO and Company Secretary had no authority to execute document mark 'A' in the favour of Sh. Shyam Sunder, AR of the complainant and no resolution of board of directors dated 31.01.2009 as such was passed in the favour of Sh.
......................Contd/ : 11 : Shyam Sunder, AR of the complainant. The complainant has relied upon document Ex.CW1/A to prove the authority of Sh. H. P. Singh, Chairman cum Managing Director and Sh. Jugal Kataria, CFO and Company Secretary to execute the Power of Attorney in the favour of Sh. Shyam Sunder, AR of the complainant and to prove resolution of board of directors passed in the favour of Sh. Shyam Sunder for his appointment as AR of the complainant. In this case, the complainant has only brought certified copy of the minutes book of the complainant company and not the original one for comparison with the document Ex.CW1/A. Since, document Ex.CW1/A does not fall within the category of documents mentioned in Section 74 of The Indian Evidence Act, 1872 and further since, the complainant has not filed an application for giving secondary evidence in this matter qua document Ex.CW1/A, therefore, the present document can not be read in evidence against the accused person as the accused person has objected to the exhibition of the document Ex.CW1/A at the time of recording of evidence. In these circumstances, since, the accused person has raised doubts about the authority of the AR of the complainant to represent the complainant and the complainant has not been able to prove the authority of Sh. H. P. Singh, Chairman cum Managing Director and Sh. Jugal Kataria, CFO and Company Secretary to execute the Power of Attorney in favour of Shyam Sunder, AR of the complainant, therefore, the accused person has been able to raise reasonable doubt that the Power of Attorney executed in favour of Sh. Shyam Sunder, AR of the complainant is not a valid one.
......................Contd/ : 12 : Now, this Court is considering the 2nd defence of the accused that the cheque in question was given by him as blank signed cheque for purpose of security and all other particulars except signatures have been filled by the complainant.
First of all, lets discuss the law on security cheques. On security cheques in the matter of "Collage Culture & Ors. Vs. Apparel Export Promotion Counsil" reported 2007 (99) DRJ 251 in Crl. M. C. No. 3011/2004, Hon'ble High Court of Delhi has held as under : "It is urged that no actionable cause exists in favour of the complainant to make out the offence under Section 138 of Negotiable Instruments Act, 1881. It is urged that the sine qua non for the applicability of Section 138 of Negotiable Instrument Act, 1881 is the issuance of cheque for a debt which is due towards discharge of a liability. It is urged that a cheque given as a collateral security or as a security for payment of an amount which may become payable at a future date upon the happening or the nonhappening of an event i.e. towards a contingency can not be the foundation of an action under Section 138 of Negotiable Instruments Act, 1881."
"It would be relevant to note that the statute does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due, but payment postponed at a future date would attract Section 138 of the Negotiable Instruments Act, 1881. But, the cheque issued not for an existing due, but issued by way of a security, would not attract Section 138 of the Negotiable Instruments Act, 1881, for it has not been issued for a debt which has come into in existence."
I have gone through the crossexamination of the AR of the complainant and deposition of the accused person and it is not the case of the accused person that cheque was given before the disbursal of loan to him and before him liability has actually become due. So, the law laid down by Hon'ble High Court of Delhi in the matters of "Collage Culture & Ors. Vs. Apparel Export Promotion Counsil" reported 2007 (99) DRJ 251 in Crl. M. C. No. 3011/2004 and reiterated in "Ravi Kumar D......... Vs. State of Delhi & Anr." passed on ......................Contd/ : 13 : 01.03.2011 is not applicable to the present facts and circumstances of this case and we have to fall back on the presumption provided under Section 118 (b) of Negotiable Instrument Act, 1881 as to date. In view of the law and reasons discussed above, the accused has not being able to rebut the presumption as to date provided under Section 118 (b) Negotiable Instrument Act, 1881, therefore, the defence of the accused that the cheque in question was a security cheque is hereby rejected.
The law on blank signed cheques as laid down by Hon'ble High Court of Delhi in the matter of "Ravi Chopra Vs. State & Anr." decided on 13.03.2008 in paragraphs number 15 to 21 is as under : Para 15 : "What appears to be clear from the above definitions that an essential feature of a cheque is that it has to be signed by the maker. This signing of the cheque need not be by hand alone. After the amendment to Section 6 in 2002, the NI Act acknowledges that there can be an electronic cheque which can be "generated, written and signed in a secure system." Nevertheless, the signing of the cheque is indeed an essential feature. But what about the other material particulars? Can the word "cheque" occurring in Section 138 NI Act include a blank cheque which is signed by the drawer but the material particulars of which are left unfilled at the time it was handed over to the payee? ................................." Para 16 : ".................................Section 87 - Effect of material alteration :
.................................The provisions of this section are subject to those of Sections 20, 49, 86 and 125."
Para 17 : "While it is correct that in terms of the above provision, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void, the expression "material alteration" has not been defined. Significantly, Section 87 has been made subject to Sections 20, 49, 86 and 125 NI Act. These provisions help up to understand what are not considered 'material alterations' for the purpose of Section 87."
Para 18 : "Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a .......................Contd/ : 14 : negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49................................." Para 19 : "The above provisions have to be read together with Section 118 NI Act which sets out various presumptions as to negotiable instruments. The presumption is of consideration, as to date, as to time of acceptance, as to transfer, as to endorsement, as to stamp. The only exception to this is provided in proviso to Section 118 which reads as under :
Provided .................................."
Para 20 : "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act." Para 21 : "The position in law has been explained in the judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not be the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore .........................Contd/ : 15 : the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged and burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden."
So, in the light of the abovesaid law, even if, for the sake of arguments, we may presume that the cheque in question was given by the accused to the complainant as blank signed cheque, even then, it is no defence in the eyes of law and is hereby rejected.
Now, this Court is considering the 3rd defence of the accused that the accused person has no liability towards the complainant qua cheque in question as he has already paid the whole of the amount of the complainant and the complainant has itself presented the cheque in question to recover illegal undisclosed penalties imposed upon him. Admittedly, the accused person had taken a loan of Rs.50,000/ which was to be repaid in 360 daily equated installments of Rs.173/ each amounting to Rs.62,280/. In this matter, the case of the complainant is that the accused stopped making payment of installments after making payment of some initial installments and during scrutinization of account details, the complainant noticed that it was entitled for Rs.93,758/ from the accused person and accordingly, issued notice dated 12.03.2010 to pay the outstanding amount to the accused and the accused came to office of the complainant after receiving the aforesaid notice and settled the matter with the complainant after due calculations and negotiations in the sum of Rs.93,578/ and further .......................Contd/ : 16 : accordingly, issued the cheque in question towards the discharge of payment of legally recoverable debt. The complainant has also filed the calculations in the form of document mark 'F' to prove that Rs.93,758/ was due against the accused person on 12.03.2010. On the other hand, the case of the accused person is that he has not received notice dated 12.03.2010 as alleged by the complainant and he never went to the office of the complainant and has not settled the loan account with the complainant and has also not issued the cheque in question for that alleged settlement.
In this case, the accused person has also not brought any documentary proof on record to prove that the has repaid the whole of the loan amount, therefore, the oral deposition of the accused person is itself not sufficient to rebut the presumption of consideration in the favour of the complainant as provided under Section 118(a) and Section 139 of Negotiable Instruments Act, 1881, however, payment of Rs.22,961/ is admitted by the complainant vide documents Ex.CW1/F and document mark 'F'. It is further clear from the document mark 'F' of the complainant that the major part of the outstanding amount calculated against the accused is in the form of penal amount. During the course of final arguments, it was submitted by the Ld. Counsel for the complainant that the amount calculated in document mark 'F' was calculated as per loan agreement mark 'D' executed between the parties. It is pertinent to mention here that as per document mark 'D', the accused person is liable to pay two types of penalties to the complainant, even for a single default of payment of equated daily installment i.e. one in the form of additional interest of 3% over and above, the stipulated ........................Contd/ : 17 : rate of interest of 24.900% per annum and another in form of Rs.20/ per day. It is not out of context to mention here that the document mark 'D' is a standard form contract and the abovesaid two penalties are highly unreasonable and if, the complainant would have filed a civil suit for recovery of abovesaid amount then the civil Court would have declared the abovesaid penalty clauses as void being unreasonable. Further this fact weighs heavily on the conscience of this Court that how a person can be forced to pay an amount of Rs.1,16,719/ for a loan of Rs.50,000/ as payment of Rs.22,961/ is not disputed by the complainant and the cheque in question is of Rs.93,578/. The abovesaid two penalties being highly unreasonable can not be enforced in any Court of law and therefore, are not legally enforceable debt or liability. Furthermore, perusal of document mark 'D' shows that the penalty of additional interest is 3% above the prevalent rate of 24.900% per annum that would come out to be 27.900% per annum, whereas perusal of document mark ''F reveals that the complainant has imposed additional interest @ 3% per month i.e. 36% per annum, therefore, the complainant has charged an interest of 50.900% which is highly unreasonable. So, it is clear that the complainant has charged even more interest then what was stipulated by the agreement between the parties. In these circumstances, where the complainant has charged more interest then what was stipulated by the agreement between the parties and further since, the penalties being charged are not legally enforceable debt or liability, therefore, they can not be a valid consideration for issuance of cheque in question. In these circumstances, this Court is of considered opinion that the complainant had no legally enforceable debt or liability against the ......................Contd/ : 18 : accused person equallent to Rs.93,578/ on the date mentioned on the cheque in question i.e. 25.03.2010.
Now, as far as the 4th defence of the accused that he has not received any legal demand notice is concerned, this Court sees no substance in this defence of the accused person as the accused person has not disputed the correctness of the address mentioned on the legal demand notice and in fact has admitted in his crossexamination that both the addresses mentioned on the legal demand notice are his correct addresses and also this is not the case of the accused person that the legal demand notice was never sent to him. In these circumstances, where the sending of the legal demand notice to the correct addresses of the accused person is not disputed by him then the defence that he has not received any legal demand notice is no defence in the eyes of law in view of the judgment passed by Hon'ble Supreme Court of India in the matter of "C. C. Alavi Hazi Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555. In this judgment, the Hon'ble Supreme Court of India has held that : "Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, can not obviously contend that there was no proper service of notice as required Under Section 138, by ignoring statutory presumption to the contrary Under Section 27 of G. C. Act and 114 of the Evidence Act."
......................Contd/ : 19 : In this case the accused person has not made the payment of cheque in question till date, therefore, in the light of the abovesaid judgment and discussion, this Court is of the opinion that the defence of the accused that he has not received any legal demand notice is without any force and is hereby rejected.
In view of the reasons discussed above, it is clear that the accused has been able to raise reasonable doubt that the present AR of the complainant is not authorized to represent and depose on behalf of the complainant and further since, the complainant had no legal enforceable debt or liability against the accused equallent to the sum of Rs.93,578/ on the date mentioned on the cheque in question, therefore, it warrants an acquittal in favour of the accused person.
11. (ii) Final order :
In view of reasons discussed above, it is clear that complainant has not been able to prove all the ingredients of offence under Section 138 of Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt, therefore, the accused person Rajesh Kumar S/o Sh.
Suresh Chand R/o 4321, Gali Bharon Wali, Jogi Wada, Nai Sadak, Delhi - 110 006. is hereby acquitted for the offence under Section 138 Negotiable Instruments Act, 1881. Documents, if any, be released as per rules. P/B and S/B, if any, are hereby discharged.
Announced in the open Court on this day of June 28, 2012.
(HARVINDER SINGH) Spl. M.M.05/Dwarka Courts, New Delhi/28.06.2012