Delhi District Court
Purushottam vs Manohar K. Deshmukh & Anr. 2007 Stpl(Dc) ... on 25 April, 2022
CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No: CC NI ACT/6124/2021
AMIT CHOUDHARY ...Complainant
Versus
FATEH CHAND SHARMA ... Accused
1. Name & address of the complainant : AMIT CHOUDHARY
2. Name & address of the accused : FATEH CHAND SHARMA
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 07.04.2022
6. Date of Institution of case : 31.07.2021
7. Date of decision of the case : 25.04.2022
JUDGEMENT
1. Vide this judgement, I shall dispose of the aforementioned complaint case filed by the complainant, Amit Choudhary (hereinafter referred to as the 'complainant') against accused, Fateh Chand Sharma (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that that the accused approached the complainant for friendly loan of Rs1,25,000/ in January 2020, with the assurance that the same will be returned by January 2021 and on his request, considering good relationship, the complainant advanced Loan of Rs.1,25,000/ to the accused and when the accused could not return the amount within stipulated period and the complainant approached the accused for return of the amount, the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:40:54 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 2 accused issued the cheque in question bearing No. 000630 dated 25.03.2021 for Rs. 25,000/ drawn on ICICI Bank, Mohan Cooperative Industrial Estate branch, Keshav Park, B1/I1 Mathura Road, New Delhi (hereinafter referred as the cheque in question) along with one other cheque bearing No. 000629 dated 21.03.2021 for Rs. 1,00,000/ drawn on ICICI Bank, Mohan Cooperative Industrial Estate branch, Keshav Park, B1/I1 Mathura Road, New Delhi, in discharge of his liability. But when the said cheque in question was presented by the complainant, the same was dishonoured for the reason "Payment stopped by drawer" vide return memo dated 30.03.2021. Thereafter, the complainant issued legal demand notice dated 24.04.2021 through Speed Post and the same was duly served upon the accused. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 31.07.2021 and prayed that the accused be tried and punished under section 138 of The Negotiable Instruments Act, 1881.
3. Summoning of accused: The court summoned the accused after hearing the arguments at the stage of presummoning vide order dated 17.01.2022 and the accused entered appearance in the present case on 02.02.2022 and he was admitted to bail vide same order.
4. Notice: The court has framed notice of accusation under Section 251 Cr.P.C. against the accused on 21.02.2022. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused pleaded not guilty and claimed trial. He admitted his signatures on the cheque in question and also admitted filling all particulars in the same except name of the payee. He also admitted that the legal demand notice has been sent on his correct address, however, he denied having received the legal demand notice. He took defence that the complainant is his landlord and during the lockdown period, it was agreed that the accused will pay half Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:40:59 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 3 of the rent, but later on the complainant demanded complete rent and quarreled with his staff and stopped their entries and also took into possession their articles. He claimed that the complainant had stollen his cheque from his office and misused the same. He further stated that he stopped the payment qua the same when he received the information from his bank about it's presentation. He claimed that he has no liability towards the accused. The statement of accused U/s 294 Cr. P.C was recorded on the same day wherein, the accused admitted the correctness of dishonour memo, pursuant to which the bank witnesses from the complainant's bank and accused's bank were dropped.
6. Evidence on behalf of complainant : To prove his case prima facie, the complainant has examined himself as CW1 and has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit which is Ex.CW1/A wherein the complainant averred the same facts as are averred in the complaint. To prove the above claims, the complainant has filed Ex.CW1/1 the original cheque in question dated 25.03.2021, Ex.CW1/2 the original return memo dt. 30.03.2021 in respect of the cheque in question, Ex. CW1/3 is the postal receipts of the legal demand notice and Ex. CW1/4 is the legal demand notice dated 24.04.2021 sent to the accused by the complainant after dishonor of cheque, Ex.CW1/5 is the tracking report of the postal receipt. Thereafter, CW1 was subjected to cross examination by Ld. Counsel for accused.
7. During his crossexamination, CW1 stated that he is a railway employee and his monthly salary is Rs. 60,000/ per month and he files ITR, however, he admitted that loan transaction is not reflected in his ITR. He admitted that the accused is his tenant since the year 2019 and he vacated his premises in January, 2021. He stated that while vacating the premises, the accused had taken all his belongings. He denied having stolen the cheque in question. He denied that he compelled the accused to vacate the premise and also denied the fact that accused intimated him before vacating the premises and claimed that accused had taken all his belonging in his absence. He submitted that the accused has demanded a loan of Rs.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.04.25
16:41:04 +0530
CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 4
1,25,000/ in January, 2020 due to some financial difficulty but he did not know about the difficulty. He stated that accused has handed over the cheque in question after one year of advancement of loan after filling all it's particulars except probably the name of the payee as security stating that he will return the amount within 23 days. This witness was also shown account statement of company of the accused Ex. DW1/X and asked that the accused was not in need of money as he had sufficient balance in his company's account, to which this witness responded that he is not aware of the account balance of the accused's company.
8. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 23.03.2022, wherein he denied receiving Rs. 1,25,000/ as friendly loan from the complainant in January, 2020. He also denied issuing the cheque in question in favour of the complainant in discharge of the liability. He admitted that the cheque in question was dishonored with remarks payment stopped by drawer vide return memo dated 29.03.2021. He admitted the signatures in the cheque in question and also filling particulars of the same except name of payee. He claimed that he was regularly paying rent to the complainant untill April, 2020 but requested the complainant to taken half of the rent due to pandemic but complainant did not agree and harassed his employees and snatched keys of the premises and had stollen the cheques from his office. He further claimed that all his belongings are still lying in the possession of the complainant. He also stated that he intends to lead defence evidence.
9. Defence Evidence: The accused got himself examined as DW1 U/S 315 Cr.PC . He adopted his statement recorded U/s 313 Cr.P.C, as his examination in chief. During his cross examination, he stated that he took the premise of the complainant on rent in September, 2019 and had no access to the same after August, 2020 and claimed that his belonging are still lying there. He admitted that he has not filed any complaint against the complainant for return of his belongings. He denied the suggestion that the complainant had not snatched the keys of rented premises and that complainant has not harrassed his employees. Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:09 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 5
10. To support his case, the accused has also examined DW2 Sh. Naresh, who was his employee at the relevant point of time. This witness deposed that he was the employee of the accused for last 5 years and stopped working with him in August, 2021. He stated that in December, 2020 or January, 2021, father of complainant along 23 boys snatched the keys of office of the accused from this witness and abused him. He stated that he informed the accused about the incident. He claimed that the accused used to leave his blank signed cheque in the office and this witness used to fill the amount and the name of the parties in the same for making payment to the parties. He claimed that accused was not in need of loan at any point of time as the company's account was always having balance of Approximately Rs. 78 Lakhs. He claimed that the all the articles were lying in the office till August, 2021. During, his cross examination, he admitted residing approximately 150 meter away from the rented premises. He admitted that he did not call on 100 number or filed any police complaint about the incident, when the complainant's father snatched the keys. He could not produce his job card claiming that he does not have the same as currently he is working in some other organization. After examination of this witness, the DE was closed.
11. Final Arguments: Learned counsel for the complainant with the help of Section 118 (a) and Section 139 of the Act argued that complainant has successfully proved guilt of the accused for the commission of offence punishable under Section 138 of the Act by way of ocular as well as documentary evidence on record. On the other hand, Learned counsel for the accused argued that complainant has failed to establish the guilt of accused for the commission of offence under Section 138 of the Act as the complainant has stollen and misused the cheque in question from his office which is established from the testimony of DW2. It has also been argued that the complainant has failed to establish the liability of the accused, as admittedly the complainant had filled the name of the payee himself. He has further argued that complainant had not disclosed the said loan in his ITR as the loan was never advanced. He further argued that the complainant never received legal demand Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:15 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 6 notice and that the accused was not in financial crisis at the relevant point of time and this fact is clear from the company's account statement Ex.DW1/X.
12. I have heard both the learned counsels, pursued the material on record and considered the submissions advanced.
13. Appreciation of evidence and finding: Coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
14. To bring home the liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
15. Thus, for securing conviction under section 138 of NIA following points are required to be proved:
a) The cheque was issued by the drawer in discharge of any debt or AISHWARYA Digitally signed by AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:20 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 7 other liability.
b) It must be legally enforceable debt or liability.
c) The cheque must be presented by payee within period of 3 months or
it's validity whichever is earlier.
d) The cheque is dishonoured because of insufficient funds or it exceeds
the arrangement.
e) A legal notice in writing demanding the payment of cheque is issued
within 30 days of the receipt of information from the bank.
f) There is default by the drawer to make the payment within 15 days from the date of the receipt of notice.
g) The complaint is filed within 30 days from the date of cause of action.
16. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
17. Since criminal liability can be attached by proving each element of the Section under which liability is sought to be enforced, I shall now go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
A. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability:
18. The first condition pertains to the issuance of the cheque in question from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has admitted his signatures on the cheque in question. He has also not disputed the fact that the cheque has been drawn on an account maintained by him. The accused has also admitted filling of all the particulars of the cheque in question except the name of the payee. However, the accused has denied issuance of cheque in question in discharge of any Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:25 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 8 legal liability towards the complainant and claimed that the complainant snatched keys of his rented premises being landlord due to dispute over the rent amount and had stolen the cheque in question from the office of the accused. The accused has denied obtaining any loan from the complainant and even claimed that he was not in need of loan as he was having sufficient balance in his company's account as reflected in account statement Ex.DW1/X.
19. The statement of CW1 Sh. Amit Choudhary, which is quite natural and seems to be trustworthy, suggests that the cheque in question was given by accused to complainant in discharge of loan given by complainant to accused, as complainant had good relationship with the accused being his landlord. Section 139 of The Negotiable Instruments Act, 1881 also carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
20. Having said that, what follows from the above is that the web of proof in a trial under Section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under Section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:30 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 9 was given.
21. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact 10. which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
22. In the present case, the accused has taken the defence in his notice U/S 251 Cr. P. C that due to rent dispute during pandemic, the complainant quarrelled Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:35 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 10 with his staff and snatched the keys of the premises and stolen the cheque in question from his office. Similarly, he also claimed during his examination in chief that complainant himself had stolen the cheque from his office and he took the keys of the premise from his employee and harassed the employee and he had no access to the said premise after August, 2020. However, as per DW2, who was working as office boy with the accused in the rented premises, the dispute happened in December, 2020 or January, 2021, when the complainant father along with 2 3 boys came and snatched the keys of the premises from him. DW2 has nowhere stated that the complainant himself snatched the keys of the rented premise. Further, this witness has also not stated that the complainant had stollen the cheque in question. Further, this witness has also admitted not making any police complaint regarding this incident. Though, this witness stated in his examinationinchief that this witness intimated the accused immediately about the incident, however, admittedly even the accused has not lodged any complaint with the police about this incident either prior to or after the misuse of cheque in question, though the accused has claimed that all his belonging are still lying in the possession of the complainant. The accused had not taken any steps to recover the cheque in question and another cheque bearing number 000630 dated 25.03.2021 which was also issued in discharge of loan availed, through issuance of legal notice or by filing police complaint or private complaint before any court of law. Though, the accused has claimed that all his belongings valuing approximately Rs. 4 Lakh are still lying in the office but admittedly regarding recovery of those belonging also, the accused has not filed any complaint or has taken any other action. In the normal course of business, it is quite natural to take suitable steps for obtaining the stolen cheque to prevent it's misuse and also for obtaining one's belongings lying in other's possession. The inaction on the part of the accused is one of the suspicious circumstances against the defence.
23. The accused has also tried to dispute the transaction by claiming that he was not in financial crisis at the relevant point of time as claimed by the complainant and thus, he was in no need of borrowing any amount from the complainant. To Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:41 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 11 establish this fact, he has relied upon deposition of DW2 who stated that the accused had not taken any loan from the complainant in his presence and there was no need of loan at the relevant point of time as the company's account used have approximately Rs. 78 lakh. To establish this fact, the accused has also relied upon his company's account statement Ex.DW1/X and had put question to CW1 in his cross examination to which CW1 responded that he was not aware of the account balance of the accused's company. Perusal of Ex. DW1/X shows that as on 31.12.2019 in the company's account there was balance of Rs. 2,64,198/. Perusal of the same also reveals that as on 31.01.2020 , the same account had balance of only Rs. 77.38 Rupees which supports the version of the complainant that the accused was in financial crisis in January, 2020 due to which he availed the loan amount from the complainant.
24. The accused has also tried to dispute the financial capacity of the complainant to advance the loan, however, the complainant stated that his monthly salary is approximately Rs. 60,000/ as he is a railway employee. On this, no further questions were put to the CW1 which uproots the aforesaid suggestion disputing the financial capacity of the complainant. The accused has also tried to dispute the transaction by claiming that the complainant has not disclosed the factum of advancement of loan in his ITR, however, the complainant has nowhere stated that he had any interest income from this loan which required him to disclose this fact in his ITR. Further, the non disclosure of the impugned transaction in the ITR of the complainant may be a separate offence under the income tax act, however, the same is not fatal to the case of the complainant.
25. Since, in this case the accused has taken the defence that the cheque is not given to the complainant by him in discharge of any liability but the same has been stollen by the complainant, , the onus to prove this fact lies with the accused, as such submissions is against the presumption raised in favour of the complainant as per Section 139 r/w 118 of NI Act. Section 103 of the Indian Evidence Act, 1872 also enunciates that the person who asserts a fact must prove the same unless the law Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:46 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 12 otherwise provides. As such, in the present case, the onus to prove that the accused has not obtained any loan from the complainant and that the cheque was stollen by the complainant rests upon the accused. The only recourse accused took to prove this fact is by his own examination as DW1 and by examination of his office boy DW2 Sh.Naresh. However, admittedly, the cheque was not stollen by the complainant in presence of DW1 or DW2. DW2 has only stated that the keys of the rented premises were snatched by the father of the complainant and has not mentioned any involvement of the complainant and admittedly, no complaint has been lodged regarding the said incident with the police and further, both DW1 and DW2 have given different version regarding the time they had access to the premise, thus, the defence of the accused regarding theft of the cheque in question by the complainant cannot be believed.
26. Accused has also raised the defence that the complainant had filled the name of the payee himself. Even, if it is presumed that the name of the payee was not filled by the accused and the same was filled by the Complainant, the said fact cannot extend any help to accused in the present case. The liability of accused has been assessed on the record. So, Complainant was having authority to fill and present said Cheque for encashment. When any person issues duly signed blank Cheque to another person, there is implied consent on his behalf, whereby, he gives authority to payee/holder that he may complete Cheque in all respect and present same for payment. As per provisions of Section 20 of Act, it is open to a person to sign and deliver blank and incomplete instrument and it is equally open for the holder to fill up blank and specify amount therein. Similar position has also been laid down in cases titled as General Auto Sales v. Vijaylakshmi 2005(1) CCC 654(Kerala), Purushottam Versus Manohar K. Deshmukh & Anr. 2007 STPL(DC) 988(BOM), Moideen Versus Johny 2006 STPL(DC) 700(KER), Prabhakar Xembhu Versus Surendra V. Pai And Another 2006 STPL(DC) 660 (BOM) and Sripati Singh Vs. The State of Jharkhand & Anr in Criminal Appeal No. 12691270 of 2021 SLP (Criminal) No. 252253/2020. AISHWARYA Digitally signed by AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:50 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 13
27. Since, the defences taken by the accused stand beseeched and the complainant's version stands established on the basis of documents produced, along with the statutory presumptions in the NI act under section 139, the first element of Section 138 NI Act stands assembled.
B. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
28. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/1 dated 25.03.2021 and the return memo Ex CW1/2 dt. 29.03.2021, thus, being presented within prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
C. That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank:
29. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonour of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. Further, the cheque has been dishonoured due to "payment stopped by drawer" is admitted by accused during his cross examination and also during his admission and denial recorded U/s 294 of Cr. P.C. Ld. Counsel for accused submits that the cheque in question has been dishonoured with remarks payment stopped by drawer, and not due to insufficient funds or exceeds arrangements, as such, the complaint is not maintainable on this aspect. However, I find no merits in the submissions made by Ld. Counsel for accused as a complaint U/s 138 NI Act can be made not only when the cheque is dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account, but also where drawer of Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:41:55 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 14 the cheque instructs it's bank to "stop payment". Reference drawn from MMTC Ltd. V Medchl Chemicals and Pharma (P) Ltd. (2002) 1 SCC 234. Hence, this condition is fulfilled.
D. The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid
30. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the legal notice Ex. CW1/4 vide postal receipt EX. CW1/3 to the accused. It's tracking report EX. CW1/5 has also been filed as per which the legal demand notice was returned with remarks "no such person in the address". Though the accused has admitted during framing of notice U/s 251 Cr. P.C and statement recorded U/s 313 Cr. P.C that the legal demand notice has been sent at the correct address, however, denied receiving the same. The postal receipt is not disputed. Once it is shown by the complainant that he had posted the legal notice at the correct address of the accused, the requirement of law stands satisfied. No further proof of service of legal notice is required. The duty of the complainant was to give a legal notice. He has proved that he had given a legal notice to the accused under Section 138 N. I. Act. Hence, he has discharged the burden. It has been proved that complainant had issued a legal notice under Section 138 N.I. Act within limitation period after dishonouring of the cheque. The complaint is therefore maintainable on this aspect. I get strength from the judgment of the Hon'ble High Court of Delhi in Mayank Pathak Vs. Elcome Trading Company Pvt. Ltd. and Anr. 231 (2016) DLT in the abovesaid matter before the Hon'ble High Court of Delhi, one of the ground of defence taken by the accused was that legal notice under Section 138 N. I. Act was not served upon him as it was not sent at the correct address of the petitioner. The Hon'ble High Court of Delhi, while dismissing this ground, has held that service of summons in such cases can be considered as service of notice and drawer of the cheque is having option to make the payment within 15 days of the receipt of the summons of the Court alongwith the copy of the complaint under Section 138 of the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:42:00 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 15 Act. The Hon'ble High Court has held as under:
"16. Other limb of argument advanced by the counsel for the petitioner is that the legal notice sent to the petitioner was never received by the petitioner as the same was never sent to the correct address of the petitioner.
"17. Perusal of record shows that legal notice Ex.CW1/9 was sent on two addresses of the petitioner i.e. L7, Back Side Ground Floor, Lajpat NagarII, New Delhi and I90, Lower Ground Floor, Lajpat Nagar, Delhi. The legal notice sent on the former address was received back with the report that the addressee had left the address. Whereas, the notice sent on the latter address was not received back. The contention of the petitioner is that his address was never of I90, Lajpat Nagar but was L90, Lajpat NagarII. Even if for the sake of arguments, it is believed that the address was not correctly mentioned on the legal notice, the judgment of Hon'ble Apex Court in the case of Alavi Haji v. Papaletty Muhammed & Anr. 2007 (2) JCC (NI) 25 makes it clear that a if person 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 contend that there was no proper service of notice as required under Section 138 of the Act. Relevant para from the judgments is quoted hereunder: "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 the statutory presumption to the contrary under Section 17 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.
As observed in Bhaskaran's case (supra), if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." "12. In C.C. Alavi Haji's case (supra), it is made clear that drawer of the cheque is having option to make the payment within 15 days of the receipt of the summons of the Court along with the copy of the complaint under Section 138 of the Act. But in the present case, it is nowhere the case of the petitioner that despite having received the copy of the summons of the Court along with a copy of the complaint under Section 138 of the Act, he had made the payment. So, the service of legal notice was not mandated and the petitioner was having the opportunity to make the payment within 15 days of the receipt of the summons of the Court. Now, he cannot contend that Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:42:05 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 16 there was no proper service of notice."
31. I have been enlightened by the judgment of the Hon'ble High Court of Delhi in Mayank Pathak v. Elcom Trading Company Pvt. Ltd. (supra). I have also been enlightened by the judgment of the Division Bench of the Hon'ble High Court of Delhi in Prakash Jewellers v A.K. Jewellers 99 (2002) DLT 244. The judgment of the Division Bench is of the year 2002. In the said case also, the accused had taken the defence that he had not received the notice under Section 138 N. I. Act. The Hon'ble High Court dismissed the objections and held as under:
"8. There is no dispute with the proposition that a statutory obligation is cast on the holder of the cheque or the payee to give notice of demand to the drawer of the cheque asking him to make a payment of the amount covered by the cheque. It is a mandatory requirement to be satisfied for constituting an offence under Section
138. "9. It is also settled that it is not the giving of the notice which makes out an offence but its receipt which furnishes a cause of action to the complainant to file the complaint within statutory period.
"10. As it is, Section 138 does not prescribe any mode for giving of demand notice by the payee or holder of the cheque. But where such notice is served by post through registered post or postal certificate, etc. with the correct address of the drawer written on it, it would raise a presumption of service unless the drawer proves that it was not received by him in fact and that he was not responsible for such nonservice. This is in tune with the principle embodied in Section 27 of the General Clauses Act or even Rule 19A of Order V CPC.
"11. Section 27 of General Clauses Act deals with the presumption of service of notice sent by post and provides that service of such notice shall be deemed to have been affected unless the contrary is proved. This principles is equally applicable to the service of notice for purpose of Section 138 of Negotiable Instrument Act also. The same could be said about the provision of Rule 19A or Order V CPC which requires a court to make a declaration of summons having been duly served and dispatched through registered post notwithstanding that AD Card had been lost or misplaced or not received back within 30 days for some other reason. The relevant proviso provides: "Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this subrule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has not been received by the Court within thirty days from the date of the issue of the summons." "12. Proceeding on this premise and going by this logic, we find no hitch Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:42:10 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 17 in taking the view that payee or the holder of a cheque was as much entitled to claim the benefit of presumption of service once he had dispatched the demand notice through registered post or postal certificate on the correct address of the sendee written on it and where he had proved such dispatch through original receipts. It becomes inconsequential whether sender had not received back the AD card or that he could not produce or prove it for having misplaced it or for some other reason."
(Emphasis supplied).
32. In the present case also, the complainant has proved that he had issued a legal notice under Section 138 N.I. Act at the correct address of the accused and as per the tracking report the same has not been delivered and returned with remakrs "door locked" and "no such person in the address". However, the accused has admitted that the legal demand notice was sent at his correct address. The supreme Court of India in catena of cases had held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house"
or "house Locked" or ' Shop Closed" or "addressee not in station" or "intimation served, addressee absent", due servcie has to be presumed. Reference drawn from N. Parameswaran Unni v. G. Kannan, (2017) 5 SCC 737. In any case, the service of legal notice is to be presumed in view of the judgment of the Hon'ble High Court of Delhi in Mayank Pathak Vs. Elcome Trading Company Pvt. Ltd. and Anr. 231 (2016) DLT 308. Therefore, the argument that the complaint is not maintainable on the ground of non service of legal notice is without any merits. I hold that the complaint is maintainable on this aspect.
E. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice:
33. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within fifteen days on the pretext that he had not taken any loan from the complainant, however, as discussed above he has failed to prove the same. Thus, the last limb of what will entail the liability against the accused is also structured. Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.04.25 16:42:15 +0530 CC NI ACT No.6124/2021 Amit ChoudharyVs. Fateh Chand Sharma Page No. 18
34. Ratio: Since in the instant case, the accused has failed to lead any convincing evidence to aid him in discharge of his onus, the presumption of law operates in favour of existence of debt or liability. It is the burden of the accused to bring positive evidence, in the wake of denying the liability by bringing evidence showing that accused has no liability towards complainant in the present complaint. However, as discussed above, he has failed to discharge his onus.
35. Having considered the entire evidence, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of NI Act. Accordingly, accused Fateh Chand Sharma is found guilty of offence u/s 138 NI Act. Let he be heard on point of sentence on another date.
36. Let the copy of this judgment be given to the convict free of cost and the same be also uploaded on CIS and Layers forthwith.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.04.25
16:42:21 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 25.04.2022 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi