Delhi District Court
Babita vs . Naresh Kumar Cc No. 5002434/16 Page No. ... on 16 January, 2020
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-00752-2016
CC No. 5002434/16
Babita
Proprietor of M/s Khushi V Trading Corp.
Office at
RZ-145, Lakshmi Garden,
2nd floor, Najafgarh,
New Delhi
............Complainant
Versus
Naresh Kumar
S/o Sh. Sat Prakash,
R/o H. No. 5A, Indra Park,
Najafgarh, New Delhi-110043
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 08.07.2016
(4) Date of conclusion of arguments: 19.12.2019
(5) Date of Final Order : 16.01.2020
(6) Final Order : Convicted
Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 1 of 15
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that she is proprietor of M/s Khushi V Trading Corporation engaged in business of ladies suits and sarees etc. It is alleged that accused was in friendly relations with husband of complainant for last many years. In March 2014, accused approached complainant's husband for loan of Rs. 8,00,000/- which was advanced by the complainant after withdrawing the amount in cash from her firm's current account i.e M/s Khushi V Trading account on 21.03.2014. It is alleged that the accused in discharge of his loan liability issued one cheque of Rs. 8,00,000/- i.e. cheque in question bearing no. 102155 dated 10.03.2016 drawn on Allahabad Bank, Najafgarh, New Delhi to complainant with an assurance of its encashment. The complainant presented the cheque in her account maintained at Allahabad Bank, Najafgarh, New Delhi, which was returned with the remarks "Insufficient Balance" vide bank return memos dated 02.04.2016 and 10.05.2016. Thereafter, complainant served a legal notice dated 30.05.2016 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined herself on affidavit Ex. CW-1/1. She reiterated the contents of complaint and placed on record, bank statement of M/s Khushi V Trading Corporation as Ex. CW-1/A, original cheque of Rs. 8,00,000/- i.e. cheque in question bearing no. 102155 dated 10.03.2016 drawn on Allahabad Bank, Najafgarh, New Delhi as Ex. CW-1/B, cheque returning memos dated 02.04.2016 & 10.05.2016 as Ex. CW-1/C and Ex.CW1/D, legal demand notice dated 30.05.2016 along with postal receipt as Ex. CW-1/E (colly), Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 2 of 15 Courier receipt along with tracking report as Ex. CW-1/F (colly).
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 21.09.2016 to which he pleaded not guilty and claimed trial. He admitted his signature on the cheque in question, however denied filling in any of the remaining details. He denied taking any loan of Rs. 8,00,000/- from complainant. He admitted receipt of legal demand notice. He stated that complainant and her husband were running a committee. He was member of one of the committees. He had claimed the prized money of Rs. 64,000/- at the premium of Rs. 16,000/-. He had given one blank signed cheque to complainant and her husband at time of becoming the member of the committee for security purpose.
5. The accused moved an application to cross-examine the complainant. Complainant as CW-1 was duly cross examined by the accused. Complainant also examined her husband Devanand as CW-2. He was also cross-examined by counsel for accused. No other witness was produced by the complainant and she closed her evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice U/s 251 Cr.P.C. He stated that he had given the cheque in question to husband of complainant as blank signed security cheque for the committee in June 2015. The committee got over, however, this cheque was not returned to him. The complainant had misused the cheque in question.
6. Accused preferred to lead evidence in his defence and had examined himself as DW-1. The witness was cross-examined by counsel for complainant. The accused did not examine any other witness and vide his statement, defence evidence was closed.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 3 of 15 counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C and also in defence evidence. He argued that accused admitted receipt of legal notice but never gave any reply to the same. He also argued that the accused did not produce any record or documents or witness regarding the alleged committee run by husband of complainant. He also argued that accused never filed a complaint against the complainant for wrongful retention or misuse of cheque in question. He argued that non production of the ITR or books of account of complainant's firm was not material for present loan. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, on behalf of accused, Ld. Counsel reiterated the submissions made by him in his plea of defence at the time of framing of notice under Section 251 Cr.P.C, in his statement under Section 313 Cr.P.C and in defence evidence. He also argued that the exact date of loan or the period of loan were not mentioned in the complaint. He also argued that it was not mentioned in the complaint that the husband of complainant had withdrawn the amount from account of M/s Khushi V Trading, whereas in legal demand notice it was mentioned that the amount was withdrawn by the complainant. It was argued that in legal demand notice, interest @ 12 % per annum on the cheque amount was also claimed. It was argued that complainant in her cross-examination admitted that she was not aware of the turnover of her firm, nor did she know whether income tax return of the firm was filed and she also did not remember the annual income of the firm. It was argued that complainant admitted the name of the payee in the cheque in question was filled by herself. It was also argued that the amount due from the accused was not reflected in the balance sheet of M/s Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 4 of 15 Khushi V trading i.e Ex. CW-1/D-1. It was also argued that complainant stated that she had taken the funds for giving to accused from one Harinder who was from her in-laws side, but also stated that she did not know him properly. He argued that the loan was alleged to be given in March 2014 whereas the cheque in question was of March 2016. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove her case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 5 of 15 cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted 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 etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C. He did not deny his signature on the cheque either in cross-examination of complainant, or his statement U/s 313 Cr.P.C and also in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 6 of 15 Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
14. In the present case, the complainant by way of an affidavit led her own evidence testifying that cheque was issued to her in discharge of liability, after she had advanced loan of Rs. 8,00,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
15. The principle defence taken by the accused as brought out from his statement U/s 313 Cr.P.C and his examination in chief as DW-1, is that he had not taken any loan from complainant. He gave the cheque in question as blank signed security cheque to husband of complainant for a committee run by him. He gave the cheque to him in June 2015. The committee of accused came out in the 3rd month. He paid all the dues of the committee. After the committee got over in October 2015, he asked for returned of his cheque from husband of complainant. However, the husband of complainant did not return his cheque and Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 7 of 15 same had been misused by complainant.
16. However, perusal of evidence shows that said version of accused is not supported by any material on record. The accused could not produce any receipt of alleged payment made in cash into committee of husband of complainant. The accused did not produce any document or witness of the alleged committee to show the existence of any such committee. Furthermore, in his cross- examination accused stated that he had filed police complaint against husband of complainant for not returning his cheque. The accused produced copy of police complaint Ex. DW-1/C-1 (colly). However, he admitted that the said complaint was not against any specific person and was filed after he received notice of present case. Moreover, perusal of the complaint reveals that in the said complaint accused has alleged that some of his signed cheques have been lost by him. The same does not make any reference to the cheque in question or handing over the same to husband of complainant for purpose of any committee.
17. Furthermore, as per the version of accused the committee got over in October 2015 and the husband of complainant did not return his cheque. However, the police complaint Ex. DW-1/C-1 is dated 07.09.2016. There is no explanation on behalf of the accused as to why he waited for almost one year before filing police complaint regarding the cheque. It is also pertinent to note that the cheque in question has been dishonored twice vide cheque returning memo dated 02.04.2016 and 10.05.2016 for reason "Insufficient Balance" (Ex. CW-1/C and Ex.CW-1/D) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned after repayment of committee amount, stop payment instructions were not issued by accused to bank. In light of the above, the version of accused that he had given cheque in question to husband of complainant for committee purpose which has been misused in present case, is not credible, as the same is not supported by any evidence on record.
18. Ld. Counsel for accused also averred that cheque was given as blank Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 8 of 15 signed cheque which was misused by complainant. He also argued that complainant in her cross-examination admitted that the name of the firm i.e payee in the cheque was filled by herself. However, the same does not bring out any credible defence. Even if for the sake of argument, it is considered that the accused gave a blank signed cheque to the complainant, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
19. Ld. Counsel for accused also argued that the exact date of loan or the period of loan were not mentioned in the complaint. He also argued that the loan was alleged to be given in March 2014 whereas the cheque in question was of March 2016.However, these arguments of Ld. Counsel for accused are devoid of any substance. In the complaint and evidence affidavit of complainant, it is stated that in month of March, 2014, the accused approached the complainant's Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 9 of 15 husband for loan of Rs. 8,00,000/-, which was advanced by the complainant after withdrawing the amount in cash from her firm's current account on 21.03.2014. In her cross-examination also, complainant stated that the loan was advanced in March 2014 for period of 5-7 months which was extended later on. Thus even though the exact date of loan was not specified and cheque in question pertains to March 2016, same does not go to the root of the matter and the complainant has given sufficient explanation of the date and duration of loan.
20. Ld. Counsel for accused also argued that it was not mentioned in the complaint that the husband of complainant had withdrawn the amount from account of M/s Khushi V Trading, whereas in legal demand notice it was mentioned that the amount was withdrawn by the complainant. However, this argument of Ld. Counsel for accused is also bereft of merit. In the complaint, evidence affidavit of complainant, and legal demand notice, it is only averred that the amount was advanced by the complainant to accused after withdrawing the amount in cash from her firm's current account on 21.03.2014. Same does not specifically state that the amount was withdrawn by complainant herself. Morever, the complainant placed on record her bank statement Ex. CW-1/A, along with the complaint, which shows the withdrawal of Rs. 8,00,000/- by her husband Devanand. Thus, it was never the case of complainant that the amount was not withdrawn by her husband and she disclosed the full facts in this regard at time of filing complaint itself.
21. Ld. Counsel for accused also argued that in legal demand notice, interest @ 12 % per annum on the cheque amount was also claimed, hence the notice was not valid. However, this argument of Ld. Counsel for accused is also bereft of merit. In K.R. Indira v. Dr. G. Adinarayana AIR 2003 SC 4689, the Apex Court while discussing the catena of judgments on aspect of legal notice, held as follows:
"8. As was observed by this Court in Central Bank of India and Anr. v. Saxons Farms and Ors., [1999] 8 SCC 221 the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. The demand in the notice has to be in relation to 'said amount of Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 10 of 15 money' as described in provision. The expression 'payment of any amount of money' as appearing in the main portion of Section 138 of the Act goes to show it needs to be established that the cheque was drawn for the purpose of discharging in whole or in part of any debt or any liability, even though the notice as contemplated may involve demands for compensation, costs, interest etc. The drawer of the cheque stands absolved from his liability under Section 138 of the Act if he makes the payment of the amount covered by the cheque of which he was the drawer within 15 days from the date of receipt of notice or before the complaint is filed.
9. In Suman Sethi v. Ajay K. Churiwal and Another, [2000] 2 SCC 380 it was held that the legislative intent as evident from Section 138 of the Act is that if for the dishonoured cheque demand is not met within 15 days of the receipt of the notice the drawer is liable for conviction. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interests etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque, that does not invalidate the notice.
In the present case, in the legal demand notice Ex. CW-1/E, the complainant has raised the specific demand of Rs. 8,00,000/- as against the amount of cheque in question upon reference to the cheque. Thus merely because certain incidental charges such as interest are claimed in addition to the cheque amount, the same does not invalidate the notice.
22. Ld. Counsel for accused also argued that complainant in her cross- examination admitted that she was not aware of the turnover of her firm, nor did she know whether income tax return of the firm was filed and she also did not remember the annual income of the firm. It was also argued that the amount due from the accused was not reflected in the balance sheet of M/s Khushi V trading i.e Ex.CW-1/D-1. It was also argued that complainant stated that she had taken the funds for giving to accused from one Harinder who was from her in-laws side, but also stated that she did not know him properly. It was thus argued that complainant did not have the requisite sources to advance loan to accused.
23. However, these arguments of Ld. Counsel for accused are also devoid of Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 11 of 15 any merit. The complainant placed on record the bank account statement of her proprietorship concern as Ex. CW-1/A, showing the withdrawal of Rs. 8,00,000/- by her husband Devanand on 21.03.2014. Thus vide her bank statement, complainant has disclosed sufficient sources of funds to advance the present loan. In this regard merely due to the reason that she took funds from Harinder or did not know her properly, is not material, in view of the categorical documentary evidence of funds in form of the bank statement. Moreover, though complainant was not aware of annual income or turnover of her firm, however she produced the balance sheet of the firm as Ex. CW-1/D-1, disclosing the same. Merely because the loan was not disclosed in balance sheet or books of account of the firm, does not invalidate the case of complainant, as ld. Counsel for accused could not point out to any mandatory requirement of such disclosure for maintainability of case under Section 138 of the Act.
24. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
In the present case also the defence taken by the accused is that he had given the cheque in question as security cheque to husband of complainant for purpose of committee. However he has failed to produce any material in support of his plea of defence.
25. Regarding averment of Ld. Counsel for accused that complainant was not aware whether income tax return of the firm was filed and hence same cast doubt on her case. This argument of Ld. Counsel for accused is also devoid of any merit Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 12 of 15 as even if adverse inference in this regard is drawn against the accused and it is considered that the loan is not shown in ITR of complainant, such mere non- disclosure does not defeat her claim. It is trite law that the provisions of Section 269SS of Income Tax Act, 1961, prohibit taking or accepting loan over amount of Rs. 20,000/- in cash and do not make the amount of loan given in cash, unrecoverable in proceedings under Section 138 of the Act. Reliance in this regard can be placed upon the decision of Hon'ble High Court of Delhi in Lekh Raj Sharma v. Yashpal Sharma, (Crl.L.P. 567/2014),D.O.D. 30.06.2015, wherein it was observed:
".......21. The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and income tax return, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous.In this regard, reference may be placed on the decisions of the Bombay High Court in:
........
ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed:
"The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act."
Therefore, though non-compliance of provisions of Section 269SS of Income Tax Act,1961, may invite penal action under the said Act, however the same cannot operate to undue advantage on borrower who can refuse to pay the loan amount taken by him on this ground.
Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 13 of 15
26. The accused has admitted receipt of legal demand notice under section 138 of the Act in answer to notice under section 251 Cr.P.C. and in his statement under section 313 Cr.P.C. Also, it is worth noting that the address of the accused as mentioned in legal demand notice is 5A, Indira Park, Najafgarh, Delhi, which is the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C, testimony as DW-1 and his bail bonds. Furthermore, tracking report of speed post of legal demand notice (Ex. CW- 1/E(colly)) shows delivery of the notice upon the accused. Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
27. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 14 of 15 Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
28. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
29. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
30. Let the convict be heard on quantum of sentence.
31. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date: 2020.01.16
15:01:16 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 16th JANUARY 2020 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Babita Vs. Naresh Kumar CC No. 5002434/16 Page no. 15 of 15