Delhi District Court
Sanjay Kumar vs . on 4 April, 2012
IN THE COURT OF SHRI SHARAD GUPTA: MM06 : DWARKA
COURTS : NEW DELHI.
Case Number. : 1058/03.
Date of Commencement of Offence. : 30.11.2009
Date of Institution of Present Case. : 11.01.2010.
Sanjay Kumar,
S/O sh. Om Parkash Sharma,
R/O B18, Vishwas Park Extn.,
Near Kumar Public School,
Uttam Nagar, New Delhi ... Complainant.
Vs.
Akshay Kumar singh Chauhan
S/O Sh. Rajender Pal Singh
r/O G12A, Vishwas Park Extn.
Near Kumar Public School,
Uttam Nagar, New Delhi. .... Accused
Offence Complained Of. : U/s 138 NI Act.
Case No. 1058/03. Page No. 1 of 31
Plea of the Accused. : Not Guilty.
Final Order. : Convicted
Date of Judgment. : 24.04.2012.
:: JUDGMENT ::
1.Vide this judgment, I shall dispose off the present complaint filed by the complainant u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as the "NI Act"). At the outset, it would be apposite to refer to the aforesaid provision. The same is reproduced as below: "138. 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 Case No. 1058/03. Page No. 2 of 31 deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, 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 Case No. 1058/03. Page No. 3 of 31
(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."
2. Brief facts as averred in the present complaint is that the accused had friendly relations with the complainant that in the first week of august 2008 the accused approached the complainant for a friendly loan of Rs. 4,00,000/ and the complainant agreed to give loan to the accused and the accused assured the complainant that he wold returned the loan amount in the first week of november 2009. That in discharge of his legal liability, the accused issued cheque bearing no. 647837 for Rs. 1,00,000/ dated 30.11.2009 drawn upon ICICI Bank, Dwarka branch as part payment and assured that the cheque would be honored on presentation and the accused further assured that remaining amount will be paid very shortly. Case No. 1058/03. Page No. 4 of 31 That the said cheque when presented for encashment to bankers of the complainant was received back unpaid due to the reasons "
Funds Insufficient". That the complainant informed the accused and accused assured payment of the cheque and on assurance of the accused, the complainant again presented the cheque for encashment to bankers of the complainant which was again received back unpaid due to the reasons " Funds Insufficient" vide a cheque returning memo dated 5122009. That the complainant sent legal notice dated 10122009 by registered post and courier which were received back with remarks refused. Hence, the present complaint has been filed.
3. The complaint was filed within limitation on 11.01.2010 pursuant to which summons were issued against the accused, consequent thereupon the accused entered appearance and was admitted to bail. Notice was framed against the accused to which the accused pleaded not guilty and claimed trial. The accused stated in reply to the notice that he had invested his money at some place. The complainant also invested the money at same place. Then the Case No. 1058/03. Page No. 5 of 31 complainant said that he would give some commission to the accused if he would invest his one lac rupees and take guarantee for that. Thereafter, accused issued four undated cheques in favuor of the complainant. That later on the investment failed due to which he paid a sum of Rs. 65,000/ to the complainant and stated that he would pay the remaining balance of Rs. 35,000/ to him as soon as he got his own payment. That he received no legal notice. That he had also got FIR registered against the person with whom he had invested the money. The accused chose to lead DE and also moved appropriate application for cross examination of the complainant.
4. Complainant had led his evidence by examining himself as CW1 and has relied upon the following exhibited documents namely:
cheque in question as Ex CW1/A, cheque return memo as Ex CW1/B, legal demand notice dated 10122009 as Ex PW 1/C, postal receipt as Ex CW1/D and courier receipt as Ex CW 1/E, the returned envelope containing the legal notice with AD card as Ex CW1/F and the returned courier envelope containing legal notice as Ex CW1/G and pre summoning evidence by way of affidavit as Case No. 1058/03. Page No. 6 of 31 Ex C1.
In his affidavit, complainant has reiterated the facts as mentioned in the complaint.
5. Application u/s 145 (2) of NI Act filed by the accused was allowed and the complainant was duly cross examined by the accused. In his cross examination the complainant has stated that he is a government servant. That he did not know that permission from department is required before lending money as loan to some one. That permission was required for purchasing property but no such permission was taken by complainant from the department. It has been put to the complainant that he had paid a sum of Rs. 1,00,000/ to one Naveen Sharma proprietor of Money Mantra. That Naveen Sharma has settled the matter for sum of Rs. 65,000/ and had paid Rs. 65,000/ to the complainant. That the complainant has filed complaint qua cheques of Rs. 1,50,000/ in one complaint and cheque of Rs. 1,00,000/ in the other complaint. It has been put to the complainant that he never paid sum of Rs. 4,00,000/ to the accused. That he had approached the accused for repayment of loan on 30.11.2009 and the accused gave him a cheque of Rs. Case No. 1058/03. Page No. 7 of 31 1,00,000/, two other cheques of Rs. 50,000/ and one lac. That he presented one cheque for Rs. 1,00,000/ which was returned unpaid and on assurance of the accused the cheques were presented again. That the accused had handed over duly filled in cheques which were filled by accused himself. It has been put to the complainant that date as well as the amount mentioned in numerical was written by him. That he has arranged Rs. 4,00,000/ by borrowing some money from his father and the remaining sum was lying with him. That he has borrowed Rs. 2,50,000/ from his father and Rs. 1,50,000/ withdraw from his bank account.
6. The accused has examined one Jyoti Ranjan Swain as DW1 and the accused himself stepped into the witness box as DW 2. DW1 Jyoti Ranjan Swain has stated that he and the complainant used to invest money through the accused and he met the complainant at the office of the accused. That he was introduced to one Naveen Sharma by the accused and used to make payments to Naveen Sharma by cheques and Naveen Sharma use to acknowledge the payments made by them to accused Akshay. That he had heard that the said Naveen Sharma had settled the matter with the Case No. 1058/03. Page No. 8 of 31 complainant. That the accused did not have any responsibility qua the transactions made between them and the said Naveen Sharma. In his cross examination, the DW was unable to tell the address of the office of the accused. The DW admitted that he and the accused were employed in Genpact Pvt Ltd. The DW also admitted that the accused never gave any security that he would be responsible for the losses incurred by him in the investments made by him through the accused. That he had heard of the settlement of the accused and the complainant through different investors.
7. The accused examined himself as DW2. He has deposed that he had been working as an investment advisor and consultant since 2006 and the complainant used to approach him as for financial advice. That he had given the complainant the option of investing with Naveen Sharma and the complainant started the investment with initial amount of Rs 1,00,000/. that Naveen Sharma issued security cheques to the accused but the amount was paid to him directly. That the total investment made by the complainant with Naveen Sharma was Rs 1 lacs. That since the complainant became his customer, and assured him that he would invest more money so Case No. 1058/03. Page No. 9 of 31 in good faith the accused had issued 45 security cheques to the complainant. That later on he came to know that the company of Naveen Sharma had failed. That the complainant insisted on the accused to get his money back from the said Naveen Sharma. That the claim of complainant was settled by Rs. 65,000/ and he promised to return the cheques. That since his money and the money of other investors was involved and Naveen Sharma was absconding, so he filed a complaint against Naveen Sharma Ex DW 2/1. on the basis of his complaint, IFR 109/09 was registered against said Naveen Sharma copy whererof is Ex DW 2/2. Police issued press release Ex DW 2/3 in respect of the same. The he never dealt directly with the money. That the complainant was informed about the risks of investing in stock market. That he had explained to the complainant that he was only the advisor and the risk was to be borne by the complainant alone. That he never received any legal notice from the complainant. In his cross examination, the DW 2 has admitted that he was residing at the address mentioned in the array of parties and the notice Ex CW 1.F bore tha same address. The case of the complainant was put to the Case No. 1058/03. Page No. 10 of 31 accused. The accused denied that in his reply to the notice he had stated that he had paid sum of Rs 65,000/0 to the complainant and would pay the remaining amount of Rs 35,000/ after receiving his payment. That DW met Naveen Sharma at his residence in the year 2007.
8. During the course of trial, it was observed that the accused had not been examined under section 281/313 CrPC. The accused was accordingly examined u/s 281/313 CrPC and all the incriminating evidence coming on record was put to the accused. The accused submitted that he adopted his answer as given in response to the notice of accusation and stated that the same be read as part of his plea in his statement under section 281/313 CrPC. No fresh DE was led by the accused as DE had already been led by him. The matter was accordingly posted for final arguments.
9. From the evidence of the complainant and defence taken by accused in reply to the notice of accusation served on him, the following points arise for my determination: Case No. 1058/03. Page No. 11 of 31 S. DECISION POINTS FOR DETERMINATION NO. THEREON A Whether the cheques were drawn for discharge, in Affirmative.
whole or in part, of any legally enforceable debt or other liability?
B Whether statutory notice u/s 138 NI Act in writing Affirmative.
was given to the drawer of the cheques making a demand for the payment of amount mentioned in the cheques within 30 days of the receipt of information by payee/holder in due course from the bank regarding the return of the cheques as unpaid? C Whether the drawer failed to make such payment Affirmative.
withing 15 days of the receipt of the aforesaid notice?
D What order? As per final
order.
STATEMENT OF REASONS FOR THE DECISION
Case No. 1058/03. Page No. 12 of 31
10.The Negotiable Instruments Act, 1881 raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions, both under Sections 118(a) and 139 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as Rangappa Vs. Sri Mohan 2010(5) SCALE 340, it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
11.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to Case No. 1058/03. Page No. 13 of 31 discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof beyond reasonable doubt. However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647.It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana MenonVs. State of Kerala AIR 2006 SC3366 can be fruitfully referred to.
12.Having dwelt upon the law as regards presumptions and the burden of proof in matters arising under Section 138 Negotiable Instruments Act, 1881, I shall now deal with the merits of the present case.
Case No. 1058/03. Page No. 14 of 31
13.The case of the complainant in brief is that the accused had taken a friendly loan of Rs. 4 lacs from him and issued him total three cheques towards discharge of his liability which when presented for encashment were received back dishonoured. Now the defence of the accused can be considered. The accused in reply to notice u/s 251 cr.pc he had stated that he had invested his money at some place. The complainant also invested the money at same place. Then the complainant said that he would give some commission to the accused if he would invest his one lac rupees and take guarantee for that. Thereafter, accused issued four undated cheques in favour of the complainant. That later on the investment failed due to which he paid a sum of Rs. 65,000/ to the complainant and stated that he would pay the remaining balance of Rs. 35,000/ to him as soon as he got his own payment. However when he stepped into the witness box as DW2, the accused stated that the claim of the complainant was settled by Rs.65,000/ by Naveen Sharma. Interestingly a suggestion was also put to the complainant during his cross examination that Naveen Sharma had paid him a sum of Rs 65000/. The accused has thus introduced Case No. 1058/03. Page No. 15 of 31 two contradictory pleas on record. As per the first version, the accused himself settled the matter by paying Rs.65000/ to the complainant and also agreed to pay Rs.35,000/ to the accused later on. However, in his evidence the accused has stated that the complainant insisted him to get the money of the complainant back through Naveen Sharma and the claim of the complainant was settled by Rs.65000/. Both the versions are contradictory and cannot be believed.
14.It is also the version of the accused that the accused had issued security blank cheques to the complainant. In reply to the notice, the accused stated that he had issued four security cheques to the complainant whereas in his statement, the accused stated that he had issued 4 to 5 security blank cheques to the complainant. It thus appears that even the number of cheques issued by the accused has not been brought by him on record and there is a discrepancy even as regards the number of cheques issued by accused to the complainant. Now the context in which the cheques were issued by the accused to the complainant can be considered. The version of the accused is that the complainant Case No. 1058/03. Page No. 16 of 31 was known to him as the complainant used to approach in for making investments. That the complainant started investment with Rs.1lakh with one Naveen Sharma. That Naveen Sharma issued security cheques to the accused but the amount was paid to him directly. That the total investment made by the complainant with Naveen Sharma was Rs.1,00,000/. That since complainant became his customer and assured him that he would invest more money so he had issued 4 to 5 security blank cheques to the complainant. The defence put forth by accused does not stand the test of a reasonable prudent man similarly placed. The version of the accused is that the investment was made by the complainant with Naveen Sharma and amount was paid by the complainant to the said Naveen Sharma. However, Naveen Sharma issued security cheques to the accused. The defence put forth is bereft of reason. It appears that in case, as per the defence version if the complainant invested money with Naveen Sharma then there was no occasion for Naveen Sharma to issue security cheques to the accused. No reason for which Naveen Sharma would issue security cheques to the accused has been brought on record when Case No. 1058/03. Page No. 17 of 31 the contention of the accused is that the investment was made by the complainant directly with Naveen Sharma. Furthermore, the case of the accused is that he had issued 4 to 5 security blank cheques to the complainant on his assurance that the complainant would invest more money with him. This plea is in contradiction to the previous statement of the accused in as much as the previous contention of the accused was that the amount was invested by the complainant directly with Naveen Sharma and now the stand of the accused is that the complainant became his customer. Furthermore, the contention of the accused previously was that Naveen Sharma issued security cheques to him and now the contention of the accused is that he issued security cheques to the complainant. The reason for issuing of security cheques by the accused to the complainant has not been brought on record. It appears unbelieveable that the accused issued blank security cheques to the complainant when he had no dealing with the complainant and the complainant had not invested any money with him or given any amount of money to him directly. The defence of the accused is full of contradictions and does not Case No. 1058/03. Page No. 18 of 31 appear to be believable.
15. It has been vehemently urged by the accused that the cheques were given by him as security. It has been urged that the word "security" was written on the back side of the cheques in question and the same has been struck off by pen. It appears that in CC No. 61/03 there is some cutting on the back side of the cheque but no word underneath is legible. In these circumstances, it cannot be held that in fact word "security" was written on the back side of the cheque. Similarly, nothing has been written on the back side of cheque in the present case. It thus appears that even as per the arguments of the accused , the cheque in the present case was not given as security. Furthermore, a curious aspect of the matter is that the factum of cutting off of word "security" was neither stated by the accused in reply to notice u/s 251 cr.pc nor in his statement as DW nor the same was put to the complainant in his cross examination. This fact was first brought on record by the accused in an application u/s 340 cr.pc filed by him on 18.01.2012. Curiously enough no inspection was conducted by the accused during the period of pendency of present matter till filing Case No. 1058/03. Page No. 19 of 31 of application u/s 340 cr.p.c by him. It has been observed that the factum of cutting of the word "Security" from behind the cheque was not brought on record by the accused prior to 18.01.2012 and no reason for not bringing the same on record earlier has been brought on record, when it can be presumed that the accused knew that the word security was written on the back of the cheque even at the inception of the matter. It is apparent that the defence of the accused is an after thought and does not appear to be believable. It has also been noticed that the particulars on the cheques in question have been filled in the same ink in which the cheque has been signed and only the date on the cheque is in a different ink. It appears that at least the amount and payees' name have been filled in the cheque at the same time when it was signed and thus, the ink in all these writings is similar. This circumstance also goes against the accused in as much as the cheque in the present case is for Rs.1 lakh and the two chqeues in CC No. 61/03 are of Rs.1.5 lakhs. It does not stand to reason that the accused would issue cheques totaling 2.5 lakh Rupees when as per him the total amount invested by the Case No. 1058/03. Page No. 20 of 31 complainant with Naveen Sharma was Rs.1 lakh. Furthermore, the accused has examined DW1 Joyti Ranjan Swain to prove that the accused issued security cheques to the complainant for ensuring safe investment made by him with Naveen Sharma. However, in his cross examination, the DW1 has stated that the accused never gave him any security that he would be responsible for the losses incurred by him in investment made by him through the accused. It appears that in view of the clear statement of DW1 that accused never gave any security to him that the accused would be responsible for any losses incurred by him, the argument of the accused that the cheques were issued by him as security in respect of investment made or about to be made by the complainant with Naveen Sharma does not inspire confidence and does not appear to be believable.
16.The version of the accused is also that no loan was advanced to him by the complainant and the complainant had made investment with one Naveen Sharma. The complainant has proved on record copy of his complaint against Naveen Sharma as EX.DW2/1, copy of FIR registered against Naveen Sharma as Ex.DW2/2 and Case No. 1058/03. Page No. 21 of 31 press release of Delhi Police in this regard as Ex.DW2/3. It appears that all these documents are merely to the effect that the accused and his wife had invested Rs. 1.97 crores with the said Naveen Sharma and the said Naveen Sharma had absconded with the money. It appears that for one thing, the documents EX. DW2/1 to Ex.DW2/3 are contradictory to the stand of the accused that he never had any direct dealing with Naveen Sharma and for another thing the documents also do not establish that the complainant herein invested any money at any point of time with Naveen Sharma. The documents merely established that the accused had made some investment with Naveen Sharma. There is thus no merit in this argument of the accused.
17.It has been urged by the accused that no loan was infact advanced by the complainant to the accused. In this regard it has been submitted that the accused did not inform his department regarding the factum of giving of loan by him to the accused and that the complainant also did not inform the Income Tax Department about the factum of giving of loan to the accused. It has been urged that the loan was thus not given to the accused by the complainant. In Case No. 1058/03. Page No. 22 of 31 this regard, reliance has been placed on the pronouncement in Sanjay Mishra Vs Ms Kanishka Kapoor, decided on 24th February 2009 to the effect that the giving of unaccounted cash as loan would not come within the term legally enforceable debt or other liability as contemplated under section 138 of the NI Act 1881. In my humble opinion however, the ratio of said pronouncement is not applicable to the facts of the case in as much as in that case, the complainant had categorically admitted that the amount given as loan was unaccounted cash. However, there is no such admission of the complainant on record in the present case. Furthermore, it has been held in Sanjay Mishra supra that merely because the amount advanced is not shown in the income tax return, in every case, one cannot jump to the conclusion that the presumption under section 139 stands rebutted. Coming to the factual matrix of the present case, in his cross examination, the complainant has stated that he had paid the amount of Rs 4 lacs to the accused in cash and he had borrowed a sum of Rs 2,50,000/ from his father and he had collected a sum of Rs 1,50,000/ by Case No. 1058/03. Page No. 23 of 31 withdrawing the same from his bank account. In these circumstances, no presumption that the accused did not have sufficient means to pay the loan to the accused can be raised when the complainant is stated to be in government service. There is also nothing on record to disbelieve the testimony of the complainant in this regard. Furthermore, merely because the intimation was not given to the Income Tax authorities or to the department of the complainant regarding the loan amount advanced is not by itself fatal to the case of the complainant. The accused has also placed reliance on pronouncements in P. Gnanambigai Vs IS Krishnasamy decided on 23rd December 2010 where considering the fact that the cheque in question was filled in in three different inks and the complainant did not have the financial capacity to advance the loan, conviction of the accused was set aside. However, the said pronouncement is also not applicable to the facts of the case. Accused has also placed reliance on pronouncement of the Hon'ble Apex Court in ICDS Limited Versus Beena Shabeer decided on 12th August 2002 to the effect Case No. 1058/03. Page No. 24 of 31 that the use of words "any cheque" and "other liability" in section 138 would make even a guarantor liable in case the cheque is returned dishonoured. To my mind it appears that the ratio of ICDS supra is of no benefit to the accused but rather benefits the complainant. It has been observed that even if the unsubstantiated bald and vague defence of the accused that the cheques were given as security in respect of the amount invested by the complainant with Naveen Sharma is taken at its face value, even then the accused cannot avoid his liablity under section 138 of the Act in view of the pronouncement in ICDS supra.
18.It has also been urged by the accused that as per the complainant total amount of Rs 4 lacs was given as loan by the complainant to the accused but only cheques of Rs 2.5 lacs have been brought on record. It has been urged that this circumstance also goes against the accused. In this context it appears that the case of the complainant even in the complaint is that the cheques were issued as part payment of the loan. The case of the complainant thus is not that the cheques were issued as full and final settlement of the loan. Furthermore, the complainant was cross examined in this Case No. 1058/03. Page No. 25 of 31 regard by the accused and the complainant stated in his cross examination that he had approached the accused for repayment of loan on 30.11.2009 and the accused gave him a cheque of Rs. 1,00,000/, two other cheques of Rs. 50,000/ and one lac. That he presented one cheque for Rs. 1,00,000/ which was returned unpaid and on assurance of the accused the cheques were presented again. It thus appears that the complainant has been able to explain how the cheques were issued towards part payment of the loan and were received back dishonoured. There is thus no merit in this argument of the accused. Reliance can also be had here to the pronouncment in the case reported as Rangappa Vs. Sri Mohan 2010(5) SCALE 340, it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt. The ratio of Rangappa supra is fully applicable to the facts of the case and in the facts of the case it cannot be held that the cheques were not issued towards discharge of a legal liability.
19.The complainant has further contended that in spite of giving of Case No. 1058/03. Page No. 26 of 31 statutory notice u/s 138 NI Act, the accused failed to pay the amount of cheques in question. The accused, on the other hand, has denied the receipt of any legal notice, in his testimony.
20.The complainant has placed reliance on legal notice dated 10122009 which was sent by registered post on 11122009 and also by courier demanding from the accused to clear the outstanding amount within 15 days of the receipt of the notice which have been proved on record as Ex CW 1/C, Ex PW 1/D and Ex PW 1/E respectively. The legal notice was sent through registered post wherein the address of the accused was interalia given as: G 12 A, Vishwas Park Extn., Near Kumar Public School, Uttam Nagar, Delhi. A perusal of the personal bond furnished by the accused reveals that the aforesaid address in the legal notice is identical with the address given in the said personal bond. Furthermore, the complainant has also placed reliance on the registered covers Ex CW 1/F which were received back with report refused and the notice sent through courier Ex CW 1/G which was received back with endorsement of refused.
21. At this juncture, it would be pertinent to refer to Section 27 of the Case No. 1058/03. Page No. 27 of 31 General Clauses Act which is extracted as below: "27. Meaning of service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
27. Also a reference to the following paragraphs of judgment given by the Hon'ble Supreme Court in CC Alavi Haji Vs. Palapetty Muhammed & Another, Appeal (Crl.) 767 of 2007 would be relevant at this juncture: "14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is Case No. 1058/03. Page No. 28 of 31 unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. ... ... ...
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. ... ... ... It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. ... ... ..."
Case No. 1058/03. Page No. 29 of 31 Thus, as there has been no rebuttal of this presumption by the accused, it is deemed that the legal demand notice was duly served upon him.
28. It is evident that the drawer has failed to make the payment of the cheque amount in question within 15 days of the receipt of the aforesaid notice, thus, the present complaint u/s 138 NI Act has been initiated against the accused.
29. Final Order: In view of the above mentioned observations, all the ingredients of the offence u/s 138 NI Act are squarely made out in the present case. The complainant has successfully discharged its burden of proving its case whereas the accused has failed to rebut the presumption that the cheque in question was not issued towards a legally recoverable debt or liability and that the legal notice u/s 138 NI Act was never received by him. The defence raised by the accused is sham and full of contradictions and does not appear to be believable. In view of the evidence, documents put forth and Case No. 1058/03. Page No. 30 of 31 arguments of both the parties, the accused is hereby convicted u/s 138 NI Act. Let the convict be heard on the point of sentence separately.
Announced in the open Court
04th April 2012 (SHARAD GUPTA)
METROPOLITAN MAGISTRATE 06,
DWARKA COURTS, NEW DELHI
Case No. 1058/03. Page No. 31 of 31