Delhi District Court
Cc No.88/11 M/S Aman Electronic vs . Rajiv Goel Page No. 1 Of Pages 26 on 16 July, 2013
CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 1 of Pages 26
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 88/11
Unique ID No. 02402R0216822011
PS. Madhu Vihar
M/s Aman Electronics
through its proprietor
Sh. Umesh Gupta,
S/o Late Sh. Shyam Babu
R/o B180 West Vinod Nagar,
Main Road, Mandawli,
Delhi92 ......... Complainant.
Versus
Sh. Rajeev Goel,
S/o S.P. Goyal,
R/o A25, DLF, Dilshad Extn.II,
Delhi ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 27.06.2011
Plea of Accused : Not guilty
Complaint filed on : 22.07.2011
Final Arguments heard & Concluded on : 05.07.2013
Date of decision of the case : 16.07.2013
Final order : Conviction in
respect of cheques
bearing no. 820774 &
820776 and acquittal in
CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 2 of Pages 26
respect of cheque
bearing no. 820765.
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant M/s Aman Electronics through its proprietor Umesh Gupta, against the accused Rajiv Goel.
2. The facts in brief necessary for the disposal of the present case are that, complainant is a proprietorship firm deals in electronic / consumer goods in the name and style M/s Aman Electronics and Mr. Umesh Gupta is its proprietor. That in the afternoon of 22.01.2011 the accused and his associates Sh. Javed, Babloo, Shahid, Aquail and Smt. Preeti Goel have approached the complainant and represented themselves as partners / owners of Classic Electricals @ Classic Air conditioners desired to purchase Symphony Air Coolers, Diet and thereby purchased 28 coolers on 22.01.2011 under invoice no.43 and towards payment handedover a cheque bearing no. 820765 for an amount of Rs.1,59,458/ dated 03.02.2011, drawn on Corporation bank, Dilshad Garden branch. The delivery was taken by the accused from the showroom of the complainant and thereafter on 06.02.2011 the accused again purchased symphony Air cooler diet vide invoice no. 48 total value of the purchase was Rs.1,53,920/, towards payment of the same a cheque bearing no. 820774 amounting to Rs.1,53,920/ dated CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 3 of Pages 26 08.02.2011 was issued by the accused and thereafter on 08.02.2011 vide invoice no. 51 (Ex. CW1/3) the accused again purchased same product total value of this purchase was Rs. 1,66,538/ towards payment of the same cheque bearing no. 820776 dated 19.02.2011 for the amount of Rs.1,66,538/ was issued by the accused in favour of the complainant but on presentation the said cheques were returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memos dated 04.02.2011, 08.02.2011 & 10.02.2011. Thereafter a legal notice dated 19.03.2011 which is Mark X was sent to the accused but the accused did not make the payment. Thereafter the complainant again presented the cheques for encashment which were again dishonored due to the reason "Funds Insufficient" vide cheque returning memo dated 03.06.2011 which is Ex. CW1/7, Thereafter again a legal notice dated 09.06.2011 which is Ex. CW1/8 was sent by the complainant to the accused through his Counsel by way of registered post and courier, the postal receipts are Ex. CW1/9 to Ex. CW1/12, Courier slip is Ex. CW1/13 & AD card is Ex. CW1/14. It is further alleged that the legal notice has been duly served upon the accused despite that the accused has not paid the cheque amount to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 4 of Pages 26 accused vide order dated 30.08.2011 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused notice U/s 251 Cr.P.C. Dated 07.06.2012 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited original tax invoices dated 22.01.2011 as Ex. CW1/1, dated 06.02.2011 as Ex. CW1/2, dated 08.02.2011 as Ex. CW1/3, original cheques bearing No.820765 as Ex. CW1/4, bearing no. 820774 as Ex. CW1/5 & bearing no. 820776 as Ex. CW1/6, the cheques returning memo as Ex. CW1/7, the legal notice of demand dated 09.06.2011 as Ex. CW1/8, the original receipts of registered post are Ex. CW1/9, Ex. CW1/10, Ex. CW1/11 & Ex. CW1/12, Courier receipt as Ex. CW1/13, returned AD card as Ex. CW1/14, Legal Notice dated 19.03.2011 marked as Mark - X. Thereafter, the complainant evidence was closed at request.
5. After that on 11.10.2012 the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that he had no transaction with the complainant, infact he did not know the complainant and his entire unsigned cheque book was misplaced in the year 2007 or CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 5 of Pages 26 2008 but he do not remember the exact date, month or year of the same infact the cheques in question does not bear his signature. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1 and has filed document Mark DW1/1. The accused has also examined SI Hom Singh Yadav from Police Post Tulsi Niketan, Ghaziabad as CW2. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 6 of Pages 26 within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
WHETHER THE CHEQUES WERE ISSUED OR NOT:
9. CW1 has stated in his examine in chief that cheques in question were issued by the accused. In his statement under section 251 Cr.P.C, the accused first accepted his signatures on the cheques but in the same breath again said the cheques does not bears his signatures. The accused again in his statement U/s 313 Cr. PC and evidence U/s 315 Cr. PC stated that the cheques does not bears his signature and somebody has tried to forge his signature on the cheques. In the present matter the cheques were dishonored twice and both the times they were dishonored due to the reason "funds insufficient" and not due to the reason "drawer signatures differ". Thus it is prima facie established that the cheques bears signatures of the accused as the banker has not disputed the signatures of the accused on the cheques. Thus CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 7 of Pages 26 the onus to prove that the cheques does not bears his signatures was on the accused. However, to discharge this onus, he has not led any other evidence in this regard, except his own testimony. It would have been ideal that the accused should have called his banker to prove whether the signature on the cheques were verified or not but he chooses not to examine his banker. Hence, the returning memo Ex. CW1/7(exhibited as per Section 146 NI Act) which says that the cheques in question were dishonored due to the reason funds insufficient remains undisputed. In the above stated circumstances this Court considers the existence of the fact that the cheques bear signatures of the accused so probable that a prudent man ought, under the circumstances of this particular case, to act upon the supposition that it exists. Hence, it is proved that the cheques in question bear the signatures of the accused.
10. Once it is established that the cheques in question are bearing the signatures of the accused, further the legal position in respect of the blank signed cheques is as under:
11. In Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the name of payee there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date.
12. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 8 of Pages 26 as the amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only. "
13. In Ravi Chopra v. State & another (2008 (2) LRC 118 del) it was held by the Hon'ble high court that "it is possible for drawer of a cheque to give a blank cheque signed by him to the payee and consent either implidely or expressly to the said cheque being filed by the payee at a subsequent point of time".
14. Similarly it was held by the Kerala High Court in lillykutty v. lawrence (2004 (1) JCC (NI) 14), that there is no rule in banking business that payee's name and the amount should be written by drawer himself. Further the burden is on the accused to establish that the date, amount and payee's name are written by somebody else without the knowledge and consent of the drawer. Further in Vijender Singh V. Eicher Motors Ltd. & Anr decided on 05.05.2011 it was held by High Court of Delhi that a person issuing a blank cheque is supposed to understand the consequences of doing so. He can not escape his liability only on the ground that blank cheques had been issued.
15. From the above stated cases it is clear that in a case where cheque is handed over without filling the name of the payee or other particulars, it is upon accused to prove by positive evidence that he/she did not give implied or express consent to the complainant to fill in the name of the payee and the other particulars. However in the present case no such cogent evidence CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 9 of Pages 26 have been adduced by the accused.
16. In view of the aforesaid discussion and the evidence on record it stands proved that the cheques in question were issued by the accused.
WHETHER THE CHEQUES IN QUESTION HAVE BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
17. It is submitted by the CW1 that the accused had purchased 28 coolers on 22.01.2011 under invoice no.43 and towards payment handedover a cheque bearing no. 820765 for an amount of Rs.1,59,458/ dated 03.02.2011, drawn on Corporation bank, Dilshad Garden branch. The delivery was taken by the accused from the showroom of the complainant and thereafter on 06.02.2011 the accused again purchased symphony Air cooler diet vide invoice no. 48 total value of the purchase was Rs.1,53,920/, towards payment of the same a cheque bearing no. 820774 amounting to Rs.1,53,920/ dated 08.02.2011 was issued by the accused and thereafter on 08.02.2011 vide invoice no. 51 (Ex. CW1/3) the accused again purchased same product total value of this purchase was Rs. 1,66,538/ towards payment of the same cheque bearing no. 820776 dated 19.02.2011 for the amount of Rs.1,66,538/ was issued. The cheqeus are Ex. CW1/4, Ex. CW1/5 & Ex. CW1/6.
18. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 10 of Pages 26 proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
19. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
20. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act.
21. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the accused to CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 11 of Pages 26 prove if no loan was taken why he did not write a letter to the complainant for return of the cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
22. Therefore after the establishment of the fact that the cheques were issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence and not by mere plea taken in the statement of the accused recorded under section 313 r.w section 281 of Cr.P.C. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in Birender Singh V. state (NCT of Delhi) 2008(1)JCC (NI) 15).
23. From the following facts it can be held that the defence of the accused is not true one:
i) The accused has failed to prove that his cheques were misplaced from his office as he himself not made any complaint or has not written any letter to his banker to stop payment of the misplaced cheques. Further, the complaint shown by him written CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 12 of Pages 26 to Chowki Incharge, Tulsi Niketan has only been marked being a copy of the received copy. Further this copy does not bear any DD number and the accused is not able to tell what action was taken on this complaint. The police official (DW2) summoned by him to prove this document has deposed that they do not have any record of this document in their police station. As such, this piece of evidence is not reliable at all. Hence, the accused failed to prove this defence.
ii) In the present matter the accused has taken a number of contradictory defences. During the cross examination of complainant it was suggested by Ld. Defence counsel that the cheques do not bear the signatures of the accused. At another point it is suggested that cheques were given to the complainant as security. At yet another point it is suggested that after sending the first notice, the complainant had not filed the case as he has received payment from the accused and his associates. These shifting defences clearly show that accused is playing smart, on one hand, he says that the cheques do not bear his signature and the same were misplaced from his office, and on the other hand he says that the same were given by one Mr. Javed to the complainant. It seems that the accused wants to imply that Mr. Javed had stolen the cheques. Then why the accused did not take any action against said Mr. Javed or against the complainant. Further, again the accused took a new stand, and gave a suggestion to the complainant that Mr. Javed had given the cheques as security. In yet another contradictory defence, a CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 13 of Pages 26 suggestion is put to the complainant that he had received payment after issuance of first legal notice from the accused and his associates.
iii) The fact that accused did not bother to examine his banker, either to prove that the cheques does not bears his signatures or to show that he had gone to his banker to got the payment of the cheques stopped, go against his defence as his banker dishonored the cheques due to insufficiency of funds and not due to difference in signatures or payment stopped by drawer. The contention of the accused that his banker refused to stop payment of the cheques cannot be accepted as a banker can not say that they can not stop the payment of a cheque which might have got misplaced or wrongly issued. Further the accused has not shown that he has taken any action against his banker for not stopping the payment of the cheques which clearly suggest that the accused is deposing falsely in this respect.
iv) It is beyond the comprehension of this court that when these cheques were earlier presented and dishonored in the month of February & March, 2011 prior to their final presentation in the month of June, 2011, why the accused kept silent and did not got the payment of the cheques stopped or why not he had written a letter to the complainant stopping him from misusing the cheques. The accused has not issued any stop memo to his bank either.
v) In the present matter there are three cheques in question were earlier dishonored vide returning memo dated CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 14 of Pages 26 08.03.2011 and 04.02.2011. after this dishonor a legal notice dated 19.03.2011 was sent by the complainant to the accused through his counsel, that notice is on record as MarkX. After sending of this notice the complainant again presented the cheques for encashment. The cheques again dishonored vide dishonored memo Ex. CW1/7 and again a legal notice dated 09.06.2011 was sent to the accused at the same address and thereafter this case has been filed. Earlier the legal position was that once a legal notice has been sent, then the cause of action would arise after 15 days of its delivery and subsequent presentation of the cheques will be of no consequence as the cause of action would have arisen from the 15 days after delivery of first legal notice and no new cause of action would arise on a second legal notice. However, this legal position has been materially altered by a Judgment of Hon'ble Supreme Court cited as MSR Leathers v. S. Palaniappan Anr. Date of decision 26.09.2012 wherein it was held:
"31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 15 of Pages 26 to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time."
vi) It is the admitted position that the accused has not replied the legal notice sent by the complainant. In his statement U/s 251 Cr. PC it was submitted by the accused that he had not received the legal notice sent by the complainant. During statement U/s 313 Cr. PC it is stated by the accused that he has not received any legal notice from the complainant. However, in his cross examination U/s 315 Cr.PC the accused changed his version and submitted that "I had received the last notice sent by the counsel of the complainant". Thus it is proved that the accused had received legal notice from the complainant. Despite that he did not reply to the said legal notice. However, it is CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 16 of Pages 26 argued by the Ld. Counsel for the accused that the accused has received only the earlier notice i.e. dated 19.03.2011. The Ld. Defence counsel had put the notice dated 19.03.2011 to the complainant in his cross examination and asked him whether he has received the pay order bearing no. 000641 for the sum of Rs. 74,806/ dated 02.04.2011 after sending the notice dated 19.03.2011. The complainant accepted this fact. These questions clearly suggest that the accused has received the legal notice dated 19.03.2011 on the very same address on which the second notice was sent, however, he is denying the service of second notice. However, in the above stated circumstances this Court considers the existence of the fact of service of second legal notice on the very same address so probable that a prudent man ought, under the circumstances of this particular case, to act upon the supposition that it exists. Hence, it is proved that the second legal notice was also served upon the accused despite that he did not reply to the same. The factum that the accused did not reply to the legal notice will be considered against the accused.
vii) The defence raised by Ld. Defence Counsel that the case of the complainant is liable to be quashed in view of the Hon'ble High Court Judgment titled as M/s Alliance Infrastructure Project Pvt Ltd & ORS v. Vinay Mittal [2010 (1) JCC (NI) 98] as the complainant presented the cheqeus for encashment of whole of their amount though he had already CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 17 of Pages 26 received part payment of Rs.74,806/ (vide DD no. 000641 dated 02.04.2011) after sending the first notice before presentation of the cheques and the principal amount due to him on the date of second presentation of the cheques was reduced amount. This Judgment, though useful to the accused but only to an extent as in the case cited there was only one cheque while in the case in hand there are three separate cheques respectively of Rs. 1,59,458/ dated 03.02.2011 issued against invoice dated 22.01.2011, Rs.1,53,920/ dated 08.02.2011 issued against invoice dated 06.02.2011 & Rs.1,66,538/ dated 19.02.2011 issued against invoice dated 08.02.2011. The payment made after issuance of first notice and prior to second presentation of the cheques is only Rs.74,806/ i.e. not equivalent to any of the cheque in question rather only about half of even a single cheque. In these circumstance even if the law laid down in Alliance Infrastructure project's case is to be applied the same can save the accused from Criminal Prosecution only in respect of one of the cheques. As per Indian contract Act where a person owe a number of debts against another person then payment made by him is to be appropriated as per the following provisions of Indian Contract Act 1872.
Section 59. Application of payment where debt to be discharged is indicated Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 18 of Pages 26 under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment if accepted, must be applied accordingly.
Section 60. Application of payment where debt to be discharged is not indicated Where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits Section 61. Application of payment where neither party appropriates Where neither party makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitations of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionably.
24. In the case in hand there is no implied indication as to in respect of which particular debt the part payment should be appropriated. Further none of the parties have explicitly directed as to in respect of which one of the debt the part payment is to be appropriated. The cheques are not of equal standing as they are of different dates. Hence, as per the law laid down by Section 61 of Indian Evidence Act the part payment will be appropriated CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 19 of Pages 26 in respect of the oldest debt i.e. the debt in respect of invoice dated 22.01.2011 amounting to Rs.1,59,458/ against which the cheque bearing no.820765 amounting to Rs.1,59,458/ Ex. CW1/4 has been issued. Hence, the law laid down in Alliance Infrastructure's case will entitle accused to be acquitted only in respect of the cheque bearing no. 820765 and not in respect of the other cheques.
25. Thus the defence of the accused is inconsistent as well as contradictory. Further when the legal presumption is in favour of the complainant U/s 118 & 139 NI Act, he is not required to prove his case independently, otherwise there would be no use of the presumption in his favour. The presumptions will live, exists and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. No doubt a presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. The accused has not issued any stop memo to its bank or has not written any letter to the complainant stopping him from presenting his cheques. He has not made any complaint against the complainant or any Mr. Javed for misuse of his cheques. He has refused the service of second legal notice which was duly sent at the same address on which the earlier legal notice was sent and served. Considering all these facts together, it can be safely held that the accused has not proved any probable defence. Thus the bald plea of the accused having not been substantiated by any cogent, CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 20 of Pages 26 convincing and clear evidence would not be sufficient to rebut the presumption of law. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favor of the complainant and the same can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable. It must further be shown that the explanation is a true one. The task of the accused is not as simple as for rebutting the statutory presumption he must placed such material which can inspire confidence of the Court to believe the case of the accused then that of the complainant who is in possession of the dishonored cheques issued by none else but the accused himself (reliance placed on Attar Singh Wadhwa v. NCD of Delhi, Delhi High Court 23.12.2009). A fact is said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Since the accused has failed to rebut the presumption this Court can not ask the complainant to prove the liability of the accused by positive evidence as the presumption is living and existing.
26. The counsel for the accused cited the decision of the Supreme court in his favour titled as Krishna Janardhan Bhat v. Dattataraya G. Hegde (2008) 4 SCC 54, however the ratio of this case that existence of legally recoverable debt is not a matter of presumption under section 139 of the NI Act, has been overruled CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 21 of Pages 26 by the Hon'ble Supreme Court itself in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench Judgement) where in it was held:
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 (supra) may not be correct.
27. Thus from the above stated discussion it is clear that the accused persons have failed to rebut the presumptions U/s 118
(b) and 139 of Negotiable Instruments Act.
28. Considering the entire evidence on record, it stands duly proved that the cheques in question which are CW1/4, Ex. CW1/5 & Ex. CW1/6 were issued and drawn in discharge of legal liability of the accused and for consideration. WHETHER THE CHEQUES WERE PRESENTED WITHIN THE PERIOD OF VALIDITY AND DISHONOR OF THE SAME DUE TO THE REASON FUNDS INSUFFICIENT:
29. Perusal of the record reveals that the cheques in question which are Ex. CW1/4, Ex. CW1/5 & Ex. CW1/6 are dated 03.02.2011, 08.02.2011 & 19.02.2011 respectively, were got lastly dishonoured due to the reason funds insufficient vide cheque returning memo which is Ex. CW1/7 (exhibited U/s 146 CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 22 of Pages 26 of NI Act) dated 03.06.2011 which clearly shows that the cheques have been presented and dishonored within period of their validity i.e. within six months from the date of the cheques. The accused has not objected to or denied these facts or has not proved otherwise.
SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
30. CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 09.06.2011 which is Ex. CW1/8 and it was sent to the accused on 10.06.2011 (within 30 days of knowledge of dishonour of cheque) vide Registered Post, speed post and courier. Receipts of which are Ex. CW1/9 to Ex. CW1/13. The returning memo is Ex. CW1/14. The legal notice was sent to the accused on his two addresses, the first is A25 DLF, Dilshad ExtensionII, Ghaziabad201005 and the second is C/o Classic Air conditioners F1 Mrignayni Chowk, Dilshad Colony, Delhi95.
31. In his statement U/s 251 Cr. PC it was submitted by the accused that he had not received the legal notice sent by the complainant. During statement U/s 313 Cr. PC it is submitted by the accused that he has not received any legal notice from the complainant. However, in his cross examination U/s 315 Cr. PC the accused changed his version and submitted that "I had received the last notice sent by the counsel of the complainant".
Thus it is proved that the accused has received legal notice from CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 23 of Pages 26 the complainant despite that he did not replied the legal notice, however, it is argued by the Ld. Counsel for the accused that the accused has received only the earlier notice i.e. dated 19.03.2011. The Ld. Defence counsel had put the notice dated 19.03.2011 to the complainant in his cross examination and asked him whether he has received the pay order bearing no. 000641 for the sum of Rs.74,806/ dated 02.04.2011 after sending the notice dated 19.03.2011. The complainant accepted this fact. These questions clearly suggest that the accused has received the legal notice dated 19.03.2011 on the very same address on which the second notice was sent, however, he is denying the service of second notice. However, in the above stated circumstances this Court considers the existence of the fact of service of second legal notice on the very same address so probable that a prudent man ought, under the circumstances of this particular case, to act upon the supposition that it exists.
32. In K.Bhaskaran v. Sankaran Vaidhyan Balan AIR 1999 SC 3762, it was held by the Apex court that:
33. "No doubt Section 138 of the Act require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can be profitably be imported in a case whee the sender has dispatched the notice by post with the correct address written on it then 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 non CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 24 of Pages 26 service. 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 the strategy of subterfuge by successfully avoiding the notice".
34. The above stated position was again reiterated by the Apex court in C.C. Alavi Haji v. Palapetty Muhammed's case where apex court further held:
35. 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.
36. In the present case the legal notice was dispatched at the correct last known addresses of the accused on which earlier CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 25 of Pages 26 notice was served. Therefore it can be safely deemed that legal notice was duly served upon the accused. Further in view of the law laid down in above stated Judgments the accused can not take the defence of non service of legal notice. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE:
37. CW1 has deposed in his examination in chief that despite service of legal notice of demand accused has failed to pay the cheques amount to the complainant. Accused has submitted in his statement under Section 313 Cr.P.C that he was not liable to pay in respect of the cheques in question. Therefore this fact also stands proved.
38. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record in respect of cheque bearing no. 820774 & 820776. However, in respect of cheque bearing no. 820765 accused deserves acquittal in view of the law laid down by the Hon'ble High Court of Delhi in M/s Alliance Infrastructure Project Pvt Ltd & ORS v. Vinay Mittal [2010 (1) JCC (NI) 98]. Accordingly, accused Sh. Rajeev Goel, S/o S.P. Goyal, R/o A25, DLF, Dilshad Extn.II, Delhi stands convicted of the offence u/s 138 Negotiable Instruments Act in respect of CC No.88/11 M/s AMAN ELECTRONIC Vs. RAJIV GOEL page no. 26 of Pages 26 the cheque bearing no. 820774 & 820776. Let the copy of this judgment be supplied to the accused free of cost. Announced in the open court today i.e. 16.07.2013 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.07.2013 Containing 26 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.07.2013