Delhi District Court
Vide This Judgment vs Palapetty Muhammed & Anr." Has on 24 June, 2023
1/19
IN THE COURT OF MS. SHIVANGI VYAS, METROPOLITAN
MAGISTRATE, NEW DELHI,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 14272/2018
Canara Bank
Retail Assets Hub-I
Sarojini House,
6, Bhagwan Das Road
New Delhi- 110001 ............ Complainant
Versus
Girish Kumar,
S/o Sh. Bharat Ram
R/o D-20, 1st floor, street no. 8,
Jyoti colony Shahadra
Delhi-110032 ............Accused
(1) Offence complained of : Section 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of registration of case : 02.07.2018
(4) Date of Final Order : 26.06.2023
(5) Final Order : Convicted
JUDGMENT
1. Vide this judgment, I shall dispose of the complaint u/s 138 Negotiable Instrument act filed on behalf of complainant Canara Bank against accused Girish Kumar, S/o. Sh. Bharat Ram. Although Smt. Rekha Rai was also 2/19 arraigned as a accused in the case, after considering the pre-summoning evidence, summons were issued only to accused Girish Kumar vide order dated 17.09.2018 passed by Ld. Predecessor of this court.
2. Facts in brief as stated in the complaint are that the complainant is engaged in the business of banking and providing various facilities including loan facilities to its customers. The accused approached the complainant for a housing loan amount of Rs.39,50,000/- (Rupees Thirty Nine Lacs Fifty Thousand only) for purchase of flat/residential unit situated at Flat no.T23,2002, 20th Floor, Tower-23, In Amarpali La Residential, Plot no. GH-06/A, Tech Zone- IV, Noida Extension, U.P. On considering the request of the accused the complainant sanctioned loan facility to the accused of Rs.39,50,000/- on 10% floating rate of interest. The accused entered into a housing loan agreement dated 08.09.2015 with the complainant for purchase of the house situated at aforesaid and availed the loan in terms of the agreement signed by the complainant. The accused agreed to pay the housing loan to the complainant by way of 300 installments of Rs.35616/- each. The first of such instalments was to be paid on or before 08.10.2015. The accused also gave an undertaking that in default of any payment of any installment or in clearing the amount as per the terms agreed upon, he would be liable to pay interest at overdue penal rate charges of 2% per anum or such other rate as prescribed. The accused in discharge of part liability issued cheque bearing no.000048 dated 18.04.2018 drawn in favour of complainant for total amount of Rs.96,671.37/- drawn on Nainital Bank Ltd. The complainant presented the said cheque and the same was returned unpaid with the remarks 'Funds Insufficient' vide return memo dated 19.04.2018. The complainant issued legal demad notice dated 11.05.2018 which was said to be delivered on 16.05.2018. However, the complainant did not 3/19 receive any reply from the accused. The accused failed to make the payment of cheque amount within stipulated time of 15 days of receipt of legal notice and therefore the present complaint was filed.
3. The complainant tendered the pre-summoning evidence and since prima facie an offence u/s 138 of Negotiable Instrument Act was made out, the accused Girish Kumar was summoned vide order dated 17.09.2018. Notice was served upon the accused for offence punishable u/s. 138 Negotiable Instrument Act, to which he pleaded not guilty and claimed trial on 02.08.2019. In his plea of defence, accused has submitted that he has taken loan from the bank for construction link plan which was to be completed by builder and builder has been given one time payment by the bank. The bank had taken seven to eight cheques from him and all the cheques were only signed and remaining particulars were not filled. The builder has not been given him the possession of the flat in time, therefore, he being burdened with finances as he had to pay EMI to bank and he is paying rent too. He had taken loan from the bank for 20 years and he could not pay some of the installments because of reason mentioned above. The bank has presented the cheques without any intimation to him. He has no liability to pay the cheque amount to the complainant. He has received the legal notice.
4. To prove his case the complainant company has examined its Authorised Representative Mr Jitender Kumar, S/o. Sh. Ravender Kumar as CW1 who reiterated the version of the complaint and relied upon the following documents to prove the liability of accused:
a) Ex.CW1/1: Copy of Power of attorney in favour of Sahiba Bakshi to file the case (then AR of the complainant) 4/19
(b) Ex.CW1/2: Copy of Loan agreement dated 08.09.2015
(c) Ex.CW1/4: Original cheque bering no. 000048 dated 18.04.2018 drawn on Nainital Bank Ltd.
(d) Ex.CW1/5: Original Return memo dated 19.04.2018
(e) Ex.CW1/6: Demand notice dated 11.05.2018
(f) Ex.CW1/7: Registered port receipts
(g) Ex.CW1/8: Printout of tracking report regarding delivery of notice.
(There there is no Ex. CW1/3 sine sanction letter was not produced at the time of evidence).
5. An oral application u/s 142 of Negotiable Instrument act was made on behalf of the accused to cross examine the AR of the complainant and the same was allowed. AR of the complainant was duly cross examined by the Ld. counsel for accused. In his cross examination he has stated that the cheque in question dated 18.02.2018 has been paid by the accused for payment of margin money against the home loan. He does not know when the last EMI has been paid by the accused against the home loan. The margin money has to be paid prior to the NPA and at the time of disbursement. The home loan account of the accused is NPA. However, he was not sure about the date of NPA. He denied that the the statement of account of accused home loan account against which the present cheque has been dis-honored has not been filed deliberately to hide the correct facts of the case. He further denied that cheque in question is security cheque which was handed over during the documentation of home loan and has been presented by the complainant to harass the accused and also to manage the limitation in other cases. He does not know the name of sanctioning officials of the home loan against which the present cheque in question presented. He denied that the home loan has been sanctioned for the purchase of 5/19 flat in M/s La-Residentia Developers Pvt. Ltd. Project name Amrapali La Residentia under the influence and collusion with the builder. He denied that loan was sanctioned for the under constructed flats in under develop project in which the entire loan amount has been directly paid to the builder due to collusion of sanctioning authority of bank and builder. He stated that home loan sanctioned against the under construction flat has to be paid as per the construction link plan and amount should be transferred to the project financing bank. He denied that in the present case entire loan amount has been paid to the builder in one go to give benefit to the builder due to collusion with the loan sanctioning authority. The cheque in question has been obtained by the bank as PDC and it has to be presented as and when the over dues accrued against the home loan and the same has been presented for over dues clearance of the home loan. He further deneid that cheque in question has been presented after classifying the home loan account as NPA due to harassing as well as making legal benefits out of it. He deneid that bank sanctioning authority has collusion with the builder while sanctioning the loan and for this reason appropriate norms has not been followed by the bank to give benefit to the builder in raising illegal money by evading the project financing bank presence as original owner of the property being a project financing bank in which the builder has already mortgage the entire project land to the project financing bank. He denied that builder has made accused as a easy money generating person and his hard earn money has been paid through bank and put him in the big financial trouble as well as mental with the collusion of loan sanctioning authority of the bank. He denied that accused has no liability to pay the cheque amount as the same has been misused by the bank in his own way illegally and also illegally obtained the same as security cheque.
6/196. No other witness was examined and CE was closed vide order dated 26.02.2020 and matter was fixed for recording of statement of accused.
7. In the statement recorded u/s. 281 r/w section 313 CrPC, the accused stated that the cheque in question was given by him. He had taken home loan from the complainant bank of Rs. 40 lakhs for purchase of a flat. There was tripartite agreement (construction link plan) between him, complainant bank and the builder that the construction will be completed within 04 years and the payment will be done according to the construction work done. The bank paid the entire amount in one go and not according to the agreement. The cheque in question was signed by him, however, he had given blank cheque to the complainant. The other particulars in the cheque are not filled by him. He did not received the legal demand notice and he came to know about the case when summons were received by him from the Court. The cheque was given only as a formality and the bank had assured that the same will not be encashed. He had already repaid EMIs of Rs.30,000/- approximately per month to the complainant's bank from the year 2016 till 2018, however, he does not remember the exact date.
8. Accused examined himself, in his defence. Accused deposed that he met the Canara Bank officials at builder's office when he had visited in the year 2015 to office of builder for booking of flat. Thereafter, builder has suggested to get a home loan against the flat from the Canara Bank as the Canara Bank has already financed the project of the builder. The required documents for sanctioning home loan from the Canara Bank has been handed over to the officials of the Canara Bank at the builder office itself alongwith six blank cheques by putting only signatures upon the said cheque. Thereafter, approx one and a half month later, bank has granted home loan against the booked flat in 7/19 the M/s La Residentia Pvt. Ltd. The said home loan has been sanctioned under construction link plan. However, the bank has paid the entire amount in one go instead of installments as per the construction link plan due to malafide intention of the Canara Bank officials. Out of said six cheques, bank has presented the cheque in dispute without his permission. The said cheque in dispute has not been given by him at the time of presentation of the same. In this manner, bank had used its undue power and represented the cheques illegally. Further, the bank has already filed the recovery suit before the DRT Delhi for recovery of home loan sanctioned against the booked flat in the La Residentia Pvt. Ltd. The booked flat has yet not been handed over to him as well as several other home buyers because the builder was having malafide intention to grab the entire amount of the investors/home buyers to grab with the collision of Canara Bank officials. Further the project of the said builder is still pending under construction and the no revival plan has been accepted the Hon'ble Supreme Court. However, the several other pending project has been revived by the Hon'ble Supreme Court but the present project's owner are indulged into the illegal activities of the fund grabbing of the several home buyers and including the Nodal Authority. As the present loan is secured with the booked flat in the said builder but the bank has not taken any steps to realize the primary security i.e. Flat booked by him and finance by the Canara Bank.
9. He was duly cross examined by the Ld. Counsel for the complainant. In his cross examination accused stated that he had applied for a loan of Rs. 40,00,000/- from the complainant-Bank. He stated that the cheque in question has been signed by him, however, the cheque was a blank cheque issued as a security. He had given six blank cheques as security. No post dated cheque was issued by him. Accused was confronted with Ex. CW-1/2, where it is mentioned that the post dated cheque would be appropriated by the complainant-Bank in 8/19 case of default. He had not issued any post dated cheque. Only six blank cheques were issued. He stated that the address mentioned in the legal notice Ex. CW-1/6 pertain to him. He has voluntarily stated that he had not received any legal notice and came to know about the case when summons were received from the Court. He denied that the legal notice Ex. CW-1/6 was received by him. He stated that he had approached the complainant-Bank for settlement of the present case, however, the same was refused by the complainant-Bank. He stated that he did not approach the complainant-Bank after the dishonour of cheque, since he got to know about the case after receiving the summons from the Court. He denied that he had any legal liability for the payment of the cheque amount.
10. Arguments heard from both the sides. Written arguments were also filed on behalf of complainant. Accused did not file any written submission despite opportunity. Citations perused.
11. The present complaint has been filed u/s 138 of Negotiable Instrument Act. Before analysing and scanning the evidence adduced by both the parties, it is important to enumerate the law laid down u/s 138 of Negotiable Instrument act:
Section 138 of the Act: 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 9/19 for a term which may extend 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 shall apply unless
--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(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.
Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
12. Thus, the essential ingredients that can be culled out from the statutory provision are:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or 10/19 that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
13. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied, the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
14. I would now appreciate the facts in the light of the law mentioned above.
15. (i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of account maintained by him in the bank for payment of a certain amount of money to another person
16. As far as the first ingredient of Section 138 of the Act is concerned, the accused has admitted his signatures on the cheque in question. Accused has taken a plea that a blank cheque was issued by him and the other details were not filled by him. However, since the accused had admitted that he has signed the cheque, therefore it can be concluded by necessary implication that he has 11/19 issued the cheque in question. So, the first ingredient stands satisfied in the light of admissions of the accused.
17. (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability
18. Let us now examine the evidence placed on record by both the parties in order to satisfy the second ingredient of the offence.
19. In order to correctly appreciate this ingredient in the light of the evidence placed on record by both the parties, it is necessary to revisit the provision under Section 118 and Section 139 of the Act.
Section 118 of the Act inter alia provides: 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
(b) that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;
Section 139 of the Act provides:
"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 Section 138 for the discharge, in whole or in part, of any debt or other liability"
20. It is clear from the conjoint reading of the both the provisions that ordinarily in the Cheque dishonouring cases, what the courts ought to consider 12/19 is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
21. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal mremedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation.
22. As far as standard of proof required to rebut the presumption raised under Ss.118 and 139 of the Act is concerned, it has been laid down in the number of judgments rendered by the Hon'ble Supreme Court of India that a defence of non existence of liability or the cheque being given as a security, cannot be taken at the mere ipse dixit of the accused. The accused has to prove his innocence either by adducing his own evidence or by punching holes in the case of the complainant.
It was held by Hon'ble Supreme Court in the case titled as Rangappa v. Sri Mohan (2010) 11 SCC 441 that:
"...26. In the light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it is based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that 13/19 has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant/accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
23. In the facts of the present case, the accused has taken a plea that the cheque was not issued in discharge of a legal liability, the cheque was issued only as a formality at the time of taking home loan from the complainant bank of Rs 40 lakh for purchase of flat. It is stated that the complainant bank had assured that the cheque would not be encashed. There was a tripartite agreement between him, complainant bank and builder that the construction would be completed within 04 years and the payment would be made as per the construction work done. The bank paid the entire amount in one go and not as per the agreement. During his cross-examination, the accused has opposed that cheque was given only as a security. However as laid down by the hon'ble supreme court in catena of judgments, merely taking the plea that the cheque in question was a security cheque or as a formality, the accused cannot discharge his burden of proof that no legal liability existed. It is imperative to quickly run 14/19 through the case law in context of cheque given as security. It was held by Hon'ble High Court of Delhi in Suresh Chandra Goyal v. Amit Singhal, Crl. Appeal Nos. 601/2015 decided on 14.05.2015 that:
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
24. The Hon'ble High Court also analysed the meaning of the word "security" and the question as to what does the issuance of a security cheque entail, and, if there is no specific agreement touching upon the said aspect, what would the rights and obligations of the parties qua a security cheque, in case the primary obligation to secure which the security cheque was given, is not discharged. The relevant extract reads as follows:
"57. ..... ..... ..... The Black's Law Dictionary (6th edition), inter alia, defines "security" to mean:
"Protection; assurance; Indemnification. The term is usually applied to an obligation, pledge, mortgage, deposit, lien, etc., given by a debtor in order to assure the payment or performance of his debt, by furnishing the creditor with a resource to be used in case of failure in the principal obligation. Collateral given by debtor to secure loan. Document that indicates evidence of indebtedness. The name is also sometimes given to one who becomes surety or guarantor for another". (Emphasis supplied)
58. Similarly, the word "security" is defined in the Shorter Oxford English Dictionary (5th edition), inter alia, to mean: "Property etc. deposited or pledged by or on behalf of a person as a guarantee of the fulfillment of an obligation (as an appearance in court or the payment of a debt) and liable to forfeit in the event of default". (Emphasis supplied)
59. Thus, when one party gives a security to the other, implicit in the said 15/19 transaction is the understanding that in case of failure of the principal obligation, the security may be enforced.
25. Hence, merely stating that the subject cheque was given as security or mere formality is of no avail to the accused. As per the loan agreement Ex. CW- 1/2, it has been clearly stated that the bank may disburse the loan amount in stages for construction of the house on production of bills/vouchers for materials/work completed and pay directly to the borrower or contractor upon contract bills being submitted by borrower and any such payment will be binding upon the borrower or the bank may make a lump sum disbursement to the person entitled in the presence of Registrar in case of outright purchase of house. Further it has been clearly mentioned that the borrower agrees to repay the housing loan to the bank by 300 instalments of Rs.35,616/- each. The accused has taken a plea that the entire amount was disbursed to the contractor in one go and not as per agreement. It is pertinent to note that the agreement does not mandate compulsory disbursement of loan amount in stages and the same was at the discretion of the bank. Further, the liability of accused to pay instalments of Rs.35,616/- per month has been clearly stipulated in the agreement. Also, the accused has not placed any document on record to disclose the amount which should have been disbursed in stages as alleged by him. He has not even disclosed the amount which he was liable to pay and the amount for which he does not have any liability. Further, the agreement provides that on demand the borrower agrees to deliver to the bank post date cheques for monthly intallments and the cheque would be honoured on first presentation. It is also clearly stipulated in the agreement that the borrower shall not be entitled to call upon the bank to refrain from present any cheque for payment and if the borrower does so, the bank shall nevertheless entitle to make the payment. It is 16/19 also clearly stipulated in the agreement that in the event of dishonour, the provisions of the NI Act shall apply.
26. Complainant in the present case has submitted that the cheque in question was issued in discharge of part liability of accused to repay the loan amount of Rs. 39,50,000/-. The complainant has relied upon the loan agreement Ex. CW1/2. The accused has not disputed the factum of taking loan for construction of house. He has even admitted that he has made payment towards EMI from 2016 till 2018 towards part payment of the said loan amount. The total number of installments to be paid by the accused were 300 as per loan agreement Ex. CW1/2. Therefore, the accused had clear liability of payment of remaining installments towards loan amount. The accused has also not taken a plea that the entire loan amount has been repaid by him. Considering the fact that only EMIs of approximately 24 months were paid, admittedly, out of 300 installments, a considerable amount of loan was yet to be repaid. Considering the above discussion, it can be concluded that the complainant-bank has been successful in establishing that the accused owed legal liability to the complainant-bank for part repayment of loan availed by him.
27. From the above discussion it can be concluded that while the accused has failed to discharge the burden of proving the non-existence of legal liability, the complainant has been successful in establishing that a legal liability existed for which the cheque in question was issued by the accused.
28. (iii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier 17/19
29. In the facts of the present case, the date mentioned on the cheque is 18.04.2018 and the same got dishonoured on 19.04.2018 as evident from the return memo Ex. CW1/5. Therefore, it can be concluded that the cheque was presented within the period of validity. Therefore, this condition stands satisfied.
30. iv) That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank
31. In the facts of the present case, the cheque in question was returned for the reason 'Funds Insufficient' which is clear from the return memo Ex. CW1/5. Therefore, this condition stands satisfied.
32. (v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
33. In the facts of the present case, the cheque was returned on 19.04.2018 as evidenced by return memo Ex. CW1/5. The legal demand notice dated 11.05.2018 was sent to the accused on 15.05.2018. The same was delivered to the accused as evident from the postal reciepts and the tracking report Ex. CW1/7 and Ex. CW1/8 on 16.05.2018. The accused has claimed that he has not received any legal notice and received the information about the cheque only 18/19 upon receipt of summons from the court. However, in his plea of defence, the accused has admitted the receipt of legal notice. Therefore, the accused has contradicted himself and has resiled from his previous statement. Further, it is pertinent to note that the legal notice was sent ont the same address on which the accsued is still residing. The Hon'ble Supreme Court of India in Crl. Appeal No. 767 of 2007 titled as "Alavi Haji Vs. Palapetty Muhammed & Anr." has laid down;
"...17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot 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 the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
34. The accused has not paid the cheque amount even after receipt of summons from the court. Accused has not even made the payment of the cheque amount till date. Therefore, this condition also has been satisfied.
35. Considering the above discussion, it can be concluded that complainant has been successful in establishing all the ingredients of offence punishable u/s 138 NI Act, while the accused has failed to put forth any defence at all and there is nothing on record that would cast a dent on the case of the 19/19 complainant. Consequently, this court finds the accused Girish Kumar is guilty of the offence under Section 138, Negotiable Instruments Act, 1881 and convicts him accordingly. Let he be heard on quantum of sentence on 05.07.2023 at 2:00 PM.
Copy of Judgment be given free of cost to the convict.
Announced in the open court on 24.06.2023 (Shivangi Vyas) MM (Mahila Court-02) PHC, New Delhi Certified that this judgment contains 19 pages and each page bears my signature.
(Shivangi Vyas) MM (Mahila Court-02) PHC, New Delhi