Delhi District Court
Subhash Chand vs . Mewa Lal Cc No. 7826/2019 Page No. 1 Of 17 on 16 February, 2023
IN THE COURT OF MS. PRIYA JANGHU, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-008984-2019
CC No. 7826/2019
Sh. Subhash Chand
s/o Late Rati Ram,
r/o C-360, Gali No. -42,
Mahavir Enclave, Part-III,
New Delhi .......... Complainant
Versus
Sh. Mewa Lal,
s/o Sh. Sukhdev Rao,
R/o C-447, Gali no.43,
Mahavir Enclave, Part-III
New Delhi .......... Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 23.02.2019
(4) Date of conclusion of arguments : 06.02.2023
(5) Date of Final Order : 16.02.2023
(6) Final Order : Convicted
Digitally signed
by Priya
Priya Janghu
Date:
Janghu 2023.02.16
16:23:22
+0530
Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 1 of 17
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 he has given friendly loan of Rs. 3,26,000/- to accused vide a loan agreement dated 12.06.2016 and for the repayment of said loan amount, accused has issued a cheque bearing no. 466831 dated 12.12.2016 for a sum of Rs. 3,26,000/- drawn on Punjab National Bank, Kishan Ganj, New Delhi-110007. However, in the month of December, 2016, accused again requested the complainant to accept a new cheque as he could not arrange the funds. Thereafter, in discharge of his liability, the accused issued another post dated cheque bearing No. 466830 dated 28.09.2018 amounting to Rs. 3,26,000/- drawn on Punjab National Bank, Kishan Ganj, Delhi-110007 to the complainant with an assurance of its encashment. The complainant presented the said cheque in his account maintained at Punjab & Sindh Bank, Mahavir Encalve Part-III, New Delhi- 110079, which on presentation was returned/dishonoured vide return memo dated 15.12.2018 due to the reason " Funds Insufficient". Thereafter, legal demand notice dated 09.01.2019 demanding payment of aforesaid cheque was sent to the accused through courier dated 12.01.2019. Despite service of aforesaid notice, no 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.
Priya Digitally signed by
Priya Janghu
Janghu Date: 2023.02.16
16:23:41 +0530
Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 2 of 17
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record original cheque bearing no. 466831 as Ex. CW-1/1, loan agreement dated 12.06.2016 as Ex CW-1/2, original cheque in question bearing no.
466830 as Ex. CW-1/3, return memo dated 15.12.2018 as Ex. CW-1/4 ; legal notice dated 09.01.2019 as Ex. CW-1/5; courier receipt as Ex. CW-1/6 ; tracking report as Ex. CW-1/7.
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 01.11.2021 to which accused pleaded not guilty and claimed trial. Accused admitted availing loan of only about Rs. 1,00,000/- from the complainant. Accused admitted his signatures on cheque in question and denied filling in remaining details on the cheque in question. Accused denied the receipt of legal demand notice. He also stated that he has issued two cheques including the cheque in question as blank signed security cheques to the complainant. He further stated that he has repaid the entire loan amount to the complainant in various installments amounting to Rs. 10,000/- or Rs. 20,000/- etc. however, he denied having any receipt for the same. He also stated that the complainant did not return back his blank signed security cheques and has misused the cheque in question. Thereafter, matter was listed for complainant evidence.
5. Complainant examined himself as CW-1 and he was cross-examined by ld. counsel for the accused. During his cross-examination CW-
Digitally signedPriya by Priya Janghu Date:
Janghu 16:23:56 2023.02.16 Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 3 of 17 +0530 1/complainant also placed on record ITR for the assessment year 2016-2017 vide Ex. CW-1/D-1 (colly), his bank statement for the year 2016-2017 pertaining to his bank account maintained at Punjab and Sindh bank vide Ex. CW-1/D-2 (colly) (running into 5 pages) and bank statement for the year 2016 pertaining to his bank account maintained at State Bank of Patiala vide Ex. CW-1/D-3 (colly)(running into 6 pages). No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect on 31.10.2022.
6. Thereafter, statement of accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused separately to which accused reiterated the stand taken by him in answer to notice under Section 251 Cr.P.C. Accused admitted his signature on cheque in question and denied filling in remaining details on the cheque in question. He also denied the receipt of legal notice. Accused stated that he has availed loan of only Rs. 1,00,000/- from the complainant in the year 2015. Accused stated that he has given two cheques including the cheque in question as blank signed security cheques to complainant and has also repaid the amount of Rs. 1,50,000/- to complainant in cash. He further stated that cheque in question has been misused by the complainant. Accused preferred to lead defence evidence. Thereafter, the matter was fixed for defence evidence.
7. In his defence evidence, accused examined himself as DW-1. He was duly cross-examined by ld. Counsel for complainant and his defence evidence was closed by his statement vide order dated 03.01.2023 and matter was listed for final arguments. Digitally signed by Priya Priya Janghu Date:
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8. It was argued by the Ld. 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. He argued that accused never gave reply to the legal demand notice. He also argued that the accused did not produce any written document or receipt regarding the alleged repayment of loan. He also argued that accused never filed a complaint against the complainant for wrongfull retention of cheque in question. 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.
9. 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 and in his statement under Section 313 Cr.P.C. that the accused had only taken loan of Rs.1,00,000/- from the complainant. He argued that he had repaid entire loan with interest to the complainant and the cheque in question was misused by the complainant. He also argued that complainant did not sufficiently disclosed the sources of funds for present loan. 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 his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
Digitally
signed by
Priya Priya Janghu
Date:
Janghu 2023.02.16
16:24:11
+0530
Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 5 of 17
10. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
11. 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.
12. 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 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 Digitally signed by Priya Priya Janghu Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 6 of 17 Date:
Janghu 2023.02.16 16:24:20 +0530 liability".
13. 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].
14. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C and his statement U/s 313 Cr. P.C. 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."
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 Digitally signed by Priya Priya Janghu Janghu Date:
Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 7 of 17 2023.02.16 16:24:27 +0530 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.
15. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he had advanced loan of Rs. 3,26,000/- to the accused. The cheque in question, dishonour memo of the cheque, loan agreement and legal demand notice were exhibited on record.
16. 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 taken a loan of only Rs. 1,00,000/- from complainant in installments and that he has repaid Rs. 1,50,000/- in cash including interest @5% per month to the complainant in various installments. However, he does not have any receipt for the same. It is also his defence that cheque in question along with other cheque was given as a blank signed cheque for security purpose at time of taking said loan from complainant and same has been misused by the complainant.
17. However, perusal of evidence shows that said version of accused is not supported by any material on record. The accused in notice U/s 251 Cr.P.C admitted that he did not have any written receipt or document regarding Digitally signed by Priya Janghu Priya Date:
Janghu 2023.02.16 16:24:34 Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 8 of 17 +0530 payment to the complainant. Further, the cheque in question has been dishonored vide cheque returning memo dated 15.12.2018 for reason "Funds Insufficient" (Ex. CW-1/4) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned after repayment of substantial amount of loan, stop payment instructions were not issued by accused to his bank. Also,the accused had not filed any complaint against the complainant for wrongful retention or misuse of his cheques. In light of the above, the version of accused that he had taken a loan of Rs. 1,00,000/- only from complainant which has been repaid, is not credible, as the same is not supported by any evidence on record.
18. The accused in notice under Section 251 Cr.P.C stated that he used to repay the loan to the complainant in installments of Rs.10,000/- or Rs. 20,000/-. However, the accused in his cross-examination stated that he repaid the loan amount to the complainant in installments of Rs. 50,000/-, Rs. 30,000/- and Rs. 20,000/-. The accused has made contradictory statements at different stages of trial and is merely trying his luck. This casts doubt on the version of the accused.
19. The complainant has also relied upon a agreement dated 12.06.2016 (Ex CW-1/2), which is stated to be executed between the accused and the complainant. The accused in his cross-examination has admitted his signatures on Ex. CW-1/2 at point A, B,C and D. The only averment of accused regarding the same is that it was a blank document at the time when his signatures were obtained on the same. Such a mere averment is not sufficient to escape the terms of the document. However it is always open to a party to show that the document was devoid of any consideration. Accused Digitally signed by Priya Priya Janghu Date:
Janghu 2023.02.16 16:24:40 Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 9 of 17 +0530 has not brought on record any evidence to prove the same. Also, the accused never filed any complaint against the complainant for not returning his blank signed papers despite repayment of loan amount.
20. Ld. counsel for accused also argued that the cheque in question was given as security cheque only, and hence the same was not in discharge of any legally enforceable liability. However this argument of Ld. Counsel is bereft of any merit. In this regard, the law relating to security cheques needs to be examined. Reliance in this regard can be placed upon decision of Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. CRL. L.P. 558/2014, DoD 29.06.2015, wherein it was held as under:
"27. Thus, the "debt or other liability" has to be a legally enforceable debt or other liability. Neither the main provision of Section 138, nor the explanation suggest that the debt or other liability should be in existence on the date of issuance of the cheque, i.e. on the date of its delivery to the drawee or someone on his behalf or, on the date that the cheque bears. The only reference to time in the Section, is the point of time when the cheque is returned unpaid by the drawers bank.
28. In my view, therefore, the scope of Section 138 NI Act would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability. If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonor of the cheque would invite action under Section 138 NI Act. There could be situations where, for example, an issue may be raised with regard to the quality, quantity, deficiency, specifications, etc. of the goods/services supplied, or accounting. It would have to be examined on a case to case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to Section 138 NI Act, or not."
Digitally signed by Priya Priya Janghu Date:
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21. The Apex Court in Sampelly Satyanarayana Rao v Indian Renewable Energy Development Agency Limited, Crl App. No. 867/16, DoD 19.09.2016, also held as follows:
"We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a post-
dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise."
Thus the legal position which emerges is that regard must be had to the nature of the transaction as well as whether a crystallized and ascertained debt or liability exists on the date of the cheque, and the same has to be examined on the basis of facts and circumstances of each case.
22. In the present case, the cheque in question was given to secure the repayment of loan. As discussed above, accused has failed to show any repayment of loan to complainant or dispute the existence of liability to the tune of amount of cheque in question on the date of cheque in question. In view of the above dicta, it is clear that the cheque in question is for the crystallized and established liability, towards repayment of loan, existing on date of cheque, and the dishonor of the cheque would invite action under Section 138 NI Act. Mere submission that the cheque in question was handed as security cheque at time of taking of loan is not sufficient to rebut the statutorily presumptions.
23. Regarding the averment that cheque was given as blank signed cheque which was misused by complainant after repayment of loan, the same is also not a credible defence. Even if for the sake of argument, it is considered that Digitally signed by Priya Priya Janghu Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 11 of 17 Janghu Date:
2023.02.16 16:24:55 +0530 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. 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.
24. Ld. Counsel for accused also argued that the complainant did not have the requisite sources to advance loan to accused. Reliance has been placed on cross-examination of complainant to argue that complainant stated that the present loan was advanced from the funds from one of his committees amounting to Rs. 1,50,000/- and from personal savings amounting to Rs. 40,000/- to Rs. 50,000/-. Ld. Counsel for accused argued that same casts Digitally signed Priya by Priya Janghu Date:
Janghu 16:25:06 +0530 2023.02.16 Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 12 of 17 doubt on capacity of complainant to advance loan.
25. However, these arguments of Ld. Counsel for accused are also devoid of any merit, as perusal of the evidence shows that accused has not denied financial transactions with complainant and also admitted the factum of taking loan from the complainant, though it is averred that accused took only loan of Rs.1,00,000/- in installments, and not Rs.3,26,000/- from the complainant. This also shows that the accused has clearly admitted the financial capacity of complainant to advance loan to him.
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 repaid the loan taken from the complainant. However he has failed to produce any material in support of his plea of defence.
26. Regarding averment of Ld. Counsel for accused that the complainant has stated in his cross-examination that he had not shown the loan of Rs. 1,00,000/- advanced to the accused, in his ITR. This argument of Ld. Counsel for accused is also devoid of any merit as though the amount advanced to the Digitally signed by Priya Priya Date:
Janghu Janghu 2023.02.16 Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 13 of 17 16:25:12 +0530 accused is not shown in ITR of complainant, 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.
27. The accused has also denied receipt of legal demand notice under Digitally signed by Priya Subhash Chand vs. Mewa Lal CC No. 7826/2019 Page no. 14 of 17 Priya Janghu Janghu Date:
2023.02.16 16:25:20 +0530 section 138 of the Act. However, it is worth noting that the address of the accused as mentioned in legal demand notice is H. No. C-447, gali no. 43, Mahavir Enclave, Part III, New Delhi-110059, whereas 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 is C-447, gali no. 43, Mahavir Enclave, Part III, West Delhi-110059 . The same does not point out any substantial difference in the addresses in the legal demand notice and the ones furnished by accused in trial. Furthermore, the accused has accepted in his statement under Section 313 Cr. P.C that the address mentioned on the legal notice is his correct address. 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."
Digitally signed by Priya Priya Janghu Date:
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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.
28. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty 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.
29. 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 complainant disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo, loan agreement 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.
30. Accordingly, the accused Sh. Mewa Lal, s/o Sh. Sukhdev Rao, is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881. Digitally signed by Priya Priya Janghu Date:
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31. Let the convict be heard on quantum of sentence.
32. Copy of Judgment be supplied to the convict free of cost.
Digitally
signed by
Priya Priya Janghu
Date:
Janghu 2023.02.16
16:25:46
+0530
ANNOUNCED IN THE (PRIYA JANGHU)
OPEN COURT. METROPOLITAN MAGISTRATE
TODAY i.e 16.02.2023 DWARKA COURTS/ DELHI
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