Delhi District Court
Of "Rajesh Agarwal vs . State & Anr." Passed On July 28, 2010, ... on 16 September, 2011
IN THE COURT OF SH. HARVINDER SINGH,
SPECIAL METROPOLITAN MAGISTRATE - 05,
DWARKA COURTS, NEW DELHI.
M/s Barclays Bank PLC
through its Authorized Representative
Sh. Vaibhav Dubey ....................Complainant
Versus
Vinay Kumar Anand ....................Accused
C.C.NO.18735/10 dated 18.05.2010
PS. KALKA JI
U/s 138 N. I. ACT, 1881
a) Sl. No. of the case : 18735/10
b) Date of commission of offence : 23.04.2010 Approximately
c) Name of the complainant : M/s Barclays Bank PLC
d) Name of the accused, and his : Vinay Kumar Anand
S/o Late Sh. M. L. Anand,
R/o 257, Bharat Nagar,
New Delhi - 110 052.
e) Offence complained of : U/s 138 N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : 16.09.2011
i) Brief
statement of the reasons for the decision :
1.By way of this judgment, I shall dispose of complaint under Section 138 Negotiable Instruments Act, 1881 filed by the complainant i.e. M/s Barclays Bank PLC through its authorized representative Sh. Ankush Gupta (Earlier AR of the complainant) ........................Contd/ : 2 : against the accused Vinay Kumar Anand S/o Late Sh. M. L. Anand, R/o 257, Bharat Nagar, New Delhi - 110 052.
2. The brief facts of this case as per allegations of the complaint are that the complainant i.e. M/s Barclays Bank PLC is a Bank and the complainant granted business loan/finance facility to the accused vide loan agreement No.3312945. As per complaint, it is alleged that accused in partial discharge of his liability, issued cheque bearing No.677711 dated 17.03.2010 for a sum of Rs.44,172/ drawn on Oriental Bank of Commerce in favour of the complainant. It is further alleged in the complaint that complainant presented the above said cheque to its banker which was returned dishonored vide cheque returning memo dated 29.03.2010 with the remarks ''Insufficient Funds''. It is further alleged in the complaint that complainant served upon the accused a Legal Demand Notice dated 26.03.2010 dispatched on 31.03.2010 through its advocate thereby demanding the payment of above said cheque amount within 15 days of the receipt of the said notice. It is further alleged in the complaint that accused failed to comply with the notice and to make the payment against abovesaid cheque within 15 days of receipt of Legal Demand Notice. Accordingly, this complaint was filed by the complainant on 11.05.2010.
3. After filing of complaint, authorized representative of the complainant namely ......................Contd/ : 3 : Sh. Ankush Gupta 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 31.05.2010 and after the appearance of accused, a separate notice under Section 251 of Cr. P.C was put to the accused on 25.11.2010 to which accused pleaded not guilty and claimed trial. Thereafter, in accordance with the judgment passed by Hon'ble High Court of Delhi in matter of "Rajesh Agarwal Vs. State & Anr." passed on July 28, 2010, the matter was fixed for DE/application under Section 145 (2) N. I. Act, 1881, if any/further proceedings. After that, the accused moved an application under Section 145 (2) N. I. Act, 1881 on 11.01.2011. On 25.02.2011, the Ld. Counsel for the complainant filed an application for substitution of AR of the complainant alongwith copy of POA and the same was allowed on the even date and Sh. Vaibhav Dubey was substituted as new AR of the complainant. On the even date, the new AR of the complainant filed his affidavit qua post summoning evidence on record and the matter was fixed for CE and crossexamination with the consent of both the parties.
4. To prove the case of complainant, Sh. Vaibhav Dubey, AR of the complainant got examined himself as complainant witness and tendered his post summoning evidence by way of affidavit Ex.CW1/X and relied on the documents already exhibited in presummoning evidence i.e. Ex.CW1/1 to Ex.CW1/6 and further reiterated the contents of the complaint on oath before this Court. The power of attorney is exhibited of Sh. Vaibhav Dubey is exhibited ......................Contd/ : 4 : as Ex.CW1/1, original cheque as Ex.CW1/2, cheque returning memo as Ex.CW1/3, Legal Demand Notice as Ex.CW1/4 and original postal receipt as Ex.CW1/5. Thereafter, the witness of the complainant was cross examined by Sh. Pradeep Kumar, Ld. Counsel for the accused in length. After crossexamination, complainant's evidence was closed on the statement of the AR of the complainant on 03.06.2011.
5. After that the statement of accused was recorded under Section 313 of Cr. P.C. r/w 281 of Cr. P.C. in which all incriminating evidence alongwith exhibited documents were put to the accused Vinay Kumar Anand in which he admitted that he had availed loan from the complainant bank vide loan agreement No.3312945. It was further admitted by the accused person that cheque in question bears his signatures, but stated that the cheque in question is a security cheque. The accused further submitted that he had not received any Legal Demand Notice as alleged by the complainant. In answer to another question, whether the cheque was dishonored vide returning memo Ex.CW1/3 with the reasons "Funds Insufficient", the accused admitted that the cheque was returned dishonored due to abovesaid reason vide abovesaid returning memo, but, further stated that the cheque was presented without intimation to 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.
.........................Contd/ : 5 :
6. The accused moved an application under Section 315 of Cr. P.C. on 29.06.2011 and the same was considered and allowed on 29.06.2011 itself. The accused person examined himself as defence witness as DW1 in his defence evidence and deposed on oath that he had taken a loan of Rs.2,60,000/ approximately from the complainant bank in the year 2008. he further deposed that he had given 0506 cheques to the complainant for purpose of security in the year 2008 and further deposed that he has made payment of 0708 EMIs through ECS. The accused was crossexamined by Sh. Anand Singh, Ld. Counsel for the complainant in length. The accused examined another witness namely Sh. Ashok Kumar as DW2 in his defence evidence who deposed on oath before this Court that accused had taken a loan of Rs. 2,50,000/ from the complainant bank and the accused had given 0506 cheques to the complainant and further deposed that the tenure of the loan was 0304 years. The DW2 was crossexamined by Ms. Aparna, Ld. Counsel for the complainant. The accused closed his defence evidence on 09.08.2011 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 .......................Contd/ : 6 : 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?
AR of the complainant in his examination in chief by way of affidavit has stated in para no..03 and 04 of the affidavit Ex.CW1/X that the complainant bank granted loan to the accused under loan agreement number 3312945 executed between the parties and the accused in discharge of his partial liability issued cheque in question Ex.CW1/2 drawn on Oriental Bank of Commerce. On this point, the main contentions of the accused are that he has given cheque in question as blank signed cheque alongwith 0506 other cheques to the complainant at the time of execution of loan for the purpose of security/guarantee and the same was presented by the complainant without intimation to him and further since, the mode of ......................Contd/ : 7 : payment of EMI was through ECS, so, there was no question of issuance of cheque for discharge of his loan liability. The other defences raised by the accused are that the complainant has not filed any board resolution in the favour of Ramanathan Gopalakrishnan and therefore, the Power of Attorney executed in the favour of the AR of the complainant is not proper one, further that the complainant has also not sent any loan recall notice to the accused person.
I have carefully considered the contentions of the accused and I have also gone through the evidence on record. It is pertinent to mention here that the accused has not disputed his liability towards the complainant and has in fact admitted in his statement under Section 313 of Cr. P.C. r/w 281 Cr. P.C. and has further deposed in his examinationinchief of defence evidence that he has availed loan from the complainant. It is also not the case of the accused person that his liability towards the complainant was less than the cheque amount in question on the date mentioned on the cheque in question i.e. 17.03.2010. So, there is no dispute as to fact that the accused had liability towards the complainant. I have also gone through the crossexamination of the AR of the complainant and perusal of the cross examination of the AR of the complainant reveals that there is not even a single suggestion to the fact that no board resolution was ever passed in the favour of Sh. Ramanathan Gopalakrishnan and further that the Power of Attorney executed in the favour of the AR of the complainant is not valid one. Now, since, the authority of the AR of the complainant is not ......................Contd/ : 8 : disputed, therefore, even if, the resolution passed by the complainant bank in the favour of Mr. Ramanathan Gopalakrishnan is not filed on record, it will have no bearing on this case. Accordingly, the contention of the accused that non filing of board resolution in favour of Sh. Ramanathan Gopalakrishnan is fatal to the case of the complainant, is hereby rejected. Perusal of the crossexamination of the accused person further reveals that it is admitted by the accused person that the tenure of his loan has not expired, therefore, this Court sees no force in the defence of the accused that the non filing of loan recall notice on record is fatal to the case of the complainant. In the opinion of this Court, since the loan was persisting, there was no question of sending loan recall notice and accordingly, this contention of the accused is also rejected.
Now, the only question remains to be decided is whether the complainant has proved on record that the cheque was drawn by the accused on the date mentioned on the cheque in question or the accused has been successful in proving that the cheque in question was given by the accused as blank signed cheque to the complainant at the time of execution of loan agreement. The Ld. Counsel for the accused has relied upon the judgment of Hon'ble High Court of Delhi in the matter of "Ravi Kumar D......... Vs. State of Delhi & Anr." passed on 01.03.2011. On the other hand, the Ld. Counsel for the complainant has relied upon the judgment of Hon'ble High Court of Delhi in the matter of "Ravi Chopra Vs. State & Anr." decided on 13.03.2008 and "Lillykutty Vs. Lawrance" cited as 2003 (2) DCR 610 ......................Contd/ : 9 : passed by Hon'ble High Court of Kerala.
It is relevant to mention here Section 118 of Negotiable Instruments Act, 1881 which provides as follows :
Section 118 : Presumptions as to negotiable instruments : Until the contrary is proved, the following presumptions shall be made :
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity Further, it is pertinent to mention here Section 139 of Negotiable Instrument Act, 1881 which provides as follows : "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."
In view of presumptions provided by the Section 118 and Section 139 of Negotiable Instrument Act, 1881, presumption is that the cheque was issued/drawn for consideration and further the cheque was drawn or made on date which it bears. So, the onus ......................Contd/ : 10 : was on the accused to rebutt these presumptions. In this case, the accused person has deposed before this Court in his defence evidence that he had given 05 06 cheques to the complainant in the year 2008 for the purpose of security and has also relied upon the admission of the AR of the complainant that the mode of payment of EMIs in this case was through ECS, therefore, it also supports the case of the accused that the cheque in question was a security cheque given at the time of execution of loan agreement as blank signed cheque. During the course of the final arguments, the Ld. Counsel for the accused submitted that the AR of the complainant was not able to tell when the cheque in question was handed over by the accused to the complainant, so, it also supports the version of the accused that the cheque was not drawn on the date mentioned on the cheque, but was given by the accused at the time of execution of loan agreement.
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 .......................Contd/ : 11 : 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 secuirty, 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."
The perusal of the judgment relied upon by the Ld. Counsel for the accused in the matter of "Ravi Kumar D......... Vs. State of Delhi & Anr." passed on 01.03.2011 by Hon'ble High Court of Delhi is also based on the abovesaid law laid down by Hon'ble High Court of Delhi in the matter of Collage Culture & Ors. Vs. Apparel Export Promotion Counsil reported 2007 (99) DRJ 251 in Crl. M. C. No. 3011/2004.
I have gone through the evidence of the accused and crossexamination of the AR of the complainant and the case of the accused is that the accused issued 05 - 06 blank cheques to the complainant in the year 2008 for the purpose of security. Perusal of the evidence of the accused further reveals that the accused has not deposed that the cheques were issued by him before the disbursal of loan to him and before his liability has actually become ......................Contd/ : 12 : due. So, the law laid down by the 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 "Ravi Kumar D......... Vs. State of Delhi & Anr." 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 of N. I. Act, 1881 as to date. In view of the law and reasons discussed above, the accused has not being able to rebutt the presumption as to date provided under Section 118 Negotiable Instrument Act, 1881, therefore, the defence of the accused that the cheque in question was given by the accused at the time of execution of loan agreement 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 .......................Contd/ : 13 : 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 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 ......................Contd/ : 14 : 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 ......................Contd/ : 15 : 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 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 .......................Contd/ : 16 : 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."
Furthermore, the Hon'ble Kerala High Court in the case of Moideen Vs. Johny 2007(1) Civil Court cases 220 (Kerala) has held that when a blank signed cheque is issued by one person to another it gives an authority to the person to whom it is issued to fill it up with necessary entries regarding the liability and to present it to the Bank.
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 to the complainant, even then, it is no defence in the eyes of law.
Now, this Court is dealing with the last limb of this defence of the accused that since the mode of payment of the EMIs was through ECS, therefore, there was no occasion for issuance of cheque in question by the accused. I have considered this contention of the accused. The AR of the complainant has deposed in the para no.04 of affidavit exhibited as Ex.CW1/X that the accused issued cheque in question in favour of the complainant towards partial discharge of his liability. In the opinion of this Court, there is no bar on payment through cheque, even in cases, where the mode of payment of EMI is through ECS and the .......................Contd/ : 17 : accused has also not brought any evidence on record to prove that payment through cheque could not have been accepted by the complainant bank in this case, therefore, this contention of the accused is also rejected.
In view of abovesaid discussions, I am of the opinion that the complainant has proved on record that cheque was drawn/issued by the accused to the complainant on an account maintained by him with the banker for discharge of his partial debt and liability towards the complainant.
(b) Whether the cheque was presented to the bank within a period of six months or within period of its validity?
The complainant witness deposed in his examination in chief in para no.05 of the affidavit Ex.CW1/X that the complainant presented the cheque in question for encashment to its banker within periods of its validity, but, was returned dishonored by its banker vide return memo Ex.CW1/3 with remarks "Insufficient Funds".
Perusal of record reveals that cheque Ex.CW1/2 is dated 17.03.2010 which was got dishonored vide returning memo Ex.CW1/3 dated 19.03.2010. The accused person chose not to crossexamine the complainant witness on this point. In view of the fact that evidence of the complainant has gone uncontroverted to this factum, so, it is proved on record that the ......................Contd/ : 18 : cheque was presented within the period of its validity and within six months from the date of issuance of cheque.
(c) Whether the cheque so presented for encashment was dishonored? In this case, Sh. Vaibhav Dubey, AR of the complainant who appeared as a witness on behalf of complainant has exhibited the cheque returning memo as Ex.CW1/3. This factum of dishonourment is also not controverted by the accused person and he chose not to crossexamine the complainant witness on this point and has further admitted in his statement under Section 313 of Cr. P.C. r/w 281 of Cr. P.C. that the cheque was dishonored vide return memo as alleged, but, submitted that the cheque was presented without intimation. Therefore, in view of the evidence of the AR of the complainant and of the fact that the evidence of the complainant witness is not controverted by the accused person, it is proved on record that the cheque in question was dishonored vide cheque returning memo Ex.CW1/3 dated 29.03.2010 with the reason ''Funds Insufficient''.
(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?
.......................Contd/ : 19 : On this fact, the complainant witness has stated in his examination in chief that the complainant got issued a Legal Demand Notice dated 26.03.2010 which is exhibited as Ex.CW1/4 through its counsel and was sent to the accused on 31.03.2010 vide postal receipt exhibited as Ex.CW1/5. Perusal of the case file reveals that return memo exhibited as Ex.CW1/3 is dated 19.03.2010, the Legal Demand Notice exhibited as Ex.CW1/4 is dated 26.03.2010 and the postal receipt is exhibited as Ex.CW1/5 is dated 31.03.2010. The accused person chose not to crossexamine the complainant witness on this point and has stated in his statement under Section 313 of Cr. P.C. r/w 281 of Cr. P.C. that he had not received any such Legal Demand Notice. Now, as far as this factum that the legal demand notice was issued and dispatched within 30 days from the receipt of return memo is concerned, there is no dispute about this fact and the accused chose not to crossexamination the complainant witness on this point. So, it is proved on record that complainant issued 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?
In this case, Sh. Vaibhav Dubey, witness of the complainant has deposed in ........................Contd/ : 20 : para no.06 of his affidavit exhibited as Ex.CW1/X in his examination in chief that the accused failed to pay the cheque amount till date despite service of legal demand notice exhibited as Ex.CW1/4. On this issue, the accused person chose not to crossexamine the complainant witness on this point and merely stated in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. that he had not received any Legal Demand Notice. As far as this fact is concerned that the complainant had sent a legal demand notice exhibited as Ex.CW1/4 vide receipt exhibited as Ex.CW1/5, there is no dispute, as accused has not disputed this fact.
It is pertinent to mention here that the accused has also not disputed the address mentioned on the legal demand notice and has admitted in his crossexamination that the address mentioned on the legal demand notice Ex.CW1/4 is his correct address, therefore, it can be safely presumed that the notice was dispatched to the correct address of the accused.
Now, as far as the contention of the accused is concerned that he had not received any Legal Demand Notice, this Court sees no substance in the plea of accused, particularly in view of the Section 27 of General Clause Act, 1897 that once a document is served by post by properly addressing, prepaying and posting by registered post, unless contrary is proved, the service shall be deemed to be effected in ordinary course of post and further in view of the Section 114 of Indian Evidence Act, 1872 which provides as follows :
"The Court may presume the existence of any fact which it thinks likely to have happened, .......................Contd/ : 21 : regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." r/w illustration (f) that the common course of business has been followed in particular cases.
The Hon'ble Supreme Court of India in "K. Bhaskaran Vs. Sankarn Vaidhyan Balan" 1999 (7) SCC 510 has held as under : "No doubt Section 138 of Negotiable Instruments Act, 1881 does not require that the notice should be given only by "post".
Nonetheless, the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then, it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to be strategy of subterfuge by successfully avoiding the notice."
Further in M/s Indo Automobiles Vs. M/s Jai Durga Enterprises and others 2008(4) RCR (Civil), it was held that once the notice demanding payment has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective.
In this case, the Legal Demand Notice exhibited as Ex.CW1/4 was sent by the complainant through speed post, receipt of which is exhibited as Ex.CW1/5. In this case, the ........................Contd/ : 22 : accused has not produced any evidence to show that he has not received Legal Demand Notice. The defence of the accused that he has not received any Legal Demand Notice appears to be a afterthought which he has taken only for the purpose of taking defence. In the opinion of this Court, in these circumstances, the notice should be presumed to be served upon the accused and contrary conclusion to it would lead to anomaly and would defeat the very object of the legislation. I am fortified by the judgment passed by the Hon'ble Supreme Court of India in the matter of "C. C. Alavi Haji Vs. Palapetty Mohammed & Anr." passed on 18.05.2007. 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."
In this case, the accused has not controverted the evidence of the complainant .......................Contd/ : 23 : witness that he has not made the payment of cheque amount in question till date and further accused has not led any evidence in support of his abovesaid defence to prove that the notice was in fact not served upon the accused.
In view of the law and reasons discussed in the above paragraphs, it is proved on record that the notice was duly served upon the accused and further in view of the fact that the accused has not controverted the evidence of the complainant witness regarding factum that the accused has not made payment till date despite service of Legal Demand Notice, so, it is also proved on record that the accused has not made payment to the complainant qua cheque amount in question, even after the receipt of Legal Demand Notice.
11. (ii) Final order :
In view of abovesaid discussions, I am of the considered opinion that complainant has proved against the accused all ingredients of Section 138 of Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused Vinay Kumar Anand S/o Late Sh. M. L. Anand, R/o 257, Bharat Nagar, New Delhi - 110 052 stands convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
Copy of the judgment be supplied to the accused free of cost. Announced in the open court on this day of September 16, 2011.
(HARVINDER SINGH) Spl. M.M.05/Dwarka Courts, New Delhi/16.09.2011