Delhi District Court
Cc No. 24134/2016 Mukesh Garg vs . Brijesh Kumar @ Neetu Page No.1/19 on 2 September, 2022
IN THE COURT OF MS. MANSI MALIK,
METROPOLITAN MAGISTRATE, NORTHWEST03,
ROHINI COURTS, DELHI
CC No. 24134/2016
Mukesh Garg
S/o Sh. Ramphal Garg
R/o D14/111, Sector7,
Rohini, Delhi ..........Complainant
vs.
Brijesh Kumar @ Neetu
S/o Sh. Prem Chand
R/o D3/90, Sector16
Rohini, Delhi
Also at
Aggarwal Associates
Gali No. 4, Rana Park, Delhi ............Accused
Date of institution of case : 08.07.2016
Date of reserving the judgment : 08.08.2022
Date of pronouncement of judgment : 02.09.2022
JUDGMENT
1. S. No. of the Case : 24134/2016
CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.1/19
MANSI Digitally signed by
MANSI MALIK
MALIK Date: 2022.09.03
17:06:30 +0530
2. Date of institution of the case: 08.07.2016
3. Name of the complainant : Mukesh Garg
4. Name of the accused : Brijesh Kumar @ Neetu
5. Offence complained or proved: 138 N.I. Act
6. Plea of Accused: "Not Guilty"
7. Final Order: Convicted
8. Date of Final Order: 02.09.2022
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the present complaint filed by the Complainant against the abovenamed Accused under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as N.I. Act) for dishonour of cheque bearing No. 000071 dated 16.02.2016 for Rs. 5,00,000/ drawn on HDFC Bank, Anushka Tower, Plot No.2, Garg Trade Centre, Sector11, Rohini, Delhi.
2. The brief facts of the case are as follows:
(a) That the accused had friendly relations with the complainant and he requested a friendly loan of Rs. 5 lakh from the complainant, which was granted to him by the complainant on 25.03.2015.
(b) In lieu of the friendly loan to accused and towards discharge of legal debt arisen therefrom, complainant deposited to encash the cheque issued by accused bearing no. 000071 dated 16.02.2016 amounting to Rs.5,00,000/ CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.2/19 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.03 17:06:37 +0530 drawn on HDFC Bank Anushka Tower, Plot No.2, Garg Trade Centre, Sector11, Rohini, Delhi.
(c) That the complainant deposited the aforesaid cheque with his banker but the cheque was returned back dishonored vide cheque returning memo dated 26.04.2016 with the remarks "FUNDS INSUFFICIENT".
(d) That the complainant sent legal notice dated 24.05.2016 to the accused and the accused failed to comply with the requirement of the said notice within the stipulated period of 15 days from the date of service of notice.
(e) That the said notice was duly served upon the accused at their above noted addresses. The accused failed to pay the amount covered by the said cheques i.e. Rs.5,00,000/ to the complainant within 15 days of receiving the above said notice of demand and thereby had committed an offence U/s. 138 of the Negotiable Instrument Act. Hence, the present complaint has been filed.
3. After taking presummoning evidence in consideration, the Court took cognizance of the offence under section 138 NI Act and directed issuance of process against accused. In pursuance thereof, accused appeared before the Court and furnished Court Bail.
4. Notice under Section 138 of the Negotiable Instruments Act was framed against the accused on 21.11.2016. In the notice, the accused pleaded not guilty and claimed trial.
CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.3/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:06:44 +0530
5. In Complainant's Evidence (CE), the complainant has examined himself as CW1 by way of tendering an affidavit of evidence. CW1 was crossexamined at length by Ld. Counsel for accused. The complainant placed reliance on the documents:
(a) Ex. CW1/1 is the original cheque bearing no. 00007.
(b) Ex. CW1/2 is original cheque returning memo dated 26.04.2016.
(c) Ex. CW1/3 is copy of legal notice dated 24.05.2016.
(d) Ex. CW1/4 are the original postal receipts (Colly).
(e) Ex. CW1/5 and Ex. CW1/6 are the courier receipts (Colly).
(f) Ex. CW1/7 is the return envelope of the courier containing the legal notice.
(g) Ex. CW1/8 is the tracking report.
(h) Ex. CW1/9 is the return envelope of the speed post containing the legal notice.
(i) Ex. CW10 is the RTI reply (colly).
(j) Mark X is copy of FIR no. 99/12, PS Samaypur Badli
(k) Mark Y is copy of FIR No. 489/16, PS Samaypur Badli.
6. Thereafter, CE was closed vide order dated 27.03.2018. It was followed by recording of the statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused to which he pleaded innocence and false implication. It was stated by the accused that he has never taken any loan from complainant. It was further stated that two blank signed CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.4/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:06:52 +0530 cheques were kept by him in his drawer at his office and the complainant might have stolen the same and has misused one of the said cheque in the present case. The accused admitted to receiving the legal notice from the complainant. The accused opted to lead defence evidence.
7. The accused examined three witnesses in his defence. DW1 Sh. Chander Shekhar Kumar deposed that he was working with accused since last 20 years. He further deposed that the father of complainant as well as complainant used to sit at the boss chair of the office of the accused. The accused and complainant used to sell and purchase plots jointly. He further deposed that there was dispute over one plot between them. When the dispute was taken place, complainant told him that 'MAIN TERE MALIK KO ROAD PE LA DUNGA, BARBAAD KAR DUNGA.' He further deposed that there was court case pending between them and he was told by the accused to give statement before the Court in this regard.
8. DW2, Rahul deposed that accused and complainant were doing the business of property dealing jointly at Rana Park, Saraspur Delhi. He further deposed that complainant and his father used to come daily at the office of accused who was in the business of property dealing. He further deposed that they have dispute in respect of some transactions between them.
9. DW3, SI Sandeep deposed that he was the summoned witness and produced FIR No. 355/19 u/s 420/406/34 IPC PS S.P, Badli. He admitted CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.5/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:07:15 +0530 that above mentioned FIR relates to some property dispute between complainant and accused person.
10. DW1, DW2 and DW3 were crossexamined at length by Ld. Counsel for complainant. Thereafter, DE was closed vide order dated 03.06.2022. Thereafter, the matter was posted for final arguments.
11. During the course of arguments, it was argued on behalf of the complainant that all the ingredients of the offence under Section 138, NI Act, are fulfilled in the present case. On this basis, the complainant has argued that the presumption under Section 139 read with Section 118 of the NI Act lies in favour of the complainant and the accused has failed to rebut the presumption and raise a probable defence.
12. Per contra; Ld. Counsel for the accused has opposed the arguments rendered on behalf of the complainant and advanced the following submissions:
(a) There were no friendly relations between the parties as there were property disputes between them and thus there is no possibility of a friendly loan being advanced by the complainant to the accused.
(b) The cheque in question was filled in by the complainant himself and not the accused, hence, no liability arises.
(c) The signatory to the cheque is the accused but in the capacity of AR of Aggarwal Builders which has not been separately impleaded as a CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.6/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:08:08 +0530 party to the present case and hence the present case is not maintainable.
13. The Court has carefully perused the case record and has heard arguments advanced by Ld. Counsel for complainant as well as by Ld. Defence counsel.
14. The question in the present case revolves around whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both Explanation: For the purpose of this section, "debt or other liability" means CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.7/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:08:14 +0530 a legally enforceable debt or other liability."
15. Thus, in order to ascertain whether the accused has committed an offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
(b) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above mentioned ingredients are satisfied that the person who has drawn the cheque can be set to have committed an offence u/s 138 NI Act.
16. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. Presumption in favour of holder It shall be presumed, unless the Contrary is proved, that the holder of a CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.8/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:08:20 cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration 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 bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;..............."
17. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the nonexistence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in crossexamination of witness adduced by the complainant. It is not necessary for the accused to lead direct evidence to rebut the presumptions. He may do so by showing preponderance of probabilities and that may be by relying upon the circumstances on record.
18. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"For rebutting such presumption, what is needed is to raise a probable CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.9/19 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.03
17:08:36
+0530
defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
19. The Apex Court also clarified that the standard of proof is not as heavy as that of prosecution, which is to prove the guilt beyond reasonable doubts but the one upon the accused is only mere preponderence of probabilities. The observations made in K. Prakashan vs P. K. Surenderan, (2008) 1 SCC 258 are as follows:
"It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability".
20. Now coming to the factual matrix of the present case, this complaint has been filed by the complainant against accused on the allegations that the amount of Rs. 5,00,000/ is due and payable by the accused to the complainant towards a friendly loan advanced by the complainant to the accused. That the accused in discharge of his legally enforceable liability had issued cheque bearing no. 000071 dated 16.02.2016 for Rs. 5,00,000/ CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.10/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:08:50 +0530 drawn on HDFC, Anushka Tower Plot no. 2, Garg Trade Centre, Sector11, Rohini, Delhi110085 in favour of the complainant. However, the aforesaid cheque was dishonoured on presentation. Despite service of legal notice, the accused did not pay the cheque amount to the complainant and thus committed the offence u/s 138 NI Act.
21. The accused has assailed the present complaint and has pleaded that he has never taken any loan of Rs. 5 lakhs from the complainant. It is further submitted by the accused that two blank signed cheques were kept by him in his drawer at his office and the complainant might have stolen the same and has misused one of the said cheque in the present case. The accused thus admitted that the cheque in question bears his signatures but stated that he has not filled in the rest of the particulars. It is observed here that the accused has not denied the signatures on the cheque in the statement recorded under Section 313 CrPC. In such circumstances, the statutory presumption u/s 118 Indian Evidence Act and Section 139 NI Act is raised in favour of the complainant and the complainant has been able to prove that the cheque in question was given by the accused for a legally recoverable debt or liability. The onus of proof thereafter shifts on the accused to rebut the presumption. The accused can rebut this presumption either by bringing out contradictions in the evidence led by the complainant or by leading his own evidence.
22. At thus juncture, it is necessary to examine the evidence placed on CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.11/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:08:56 +0530 record by the complainant as well as the accused. The complainant has examined himself as CW1. In his crossexamination he has stated that no written agreement was prepared between him and the accused person with respect to the friendly loan advanced by him. The complainant admitted that he has not filed ITR record of the loan of Rs. 5,00,000/ advanced by him to the accused. No other substantial fact has been mentioned by the complainant in his crossexamination. Ld. Counsel for the accused submits that there were no friendly relations between the parties and in absence of any written agreement, the factum of advancement of loan by the complainant to the accused becomes doubtful. A perusal of the record shows that the complainant had stated that he knew the accused as he had purchased property through the accused and also along with him. DW1 as well as DW2 also state that the accused and the complainant used to jointly deal in the business of property. Therefore, the advancement of loan by the complainant to the accused without any written documentation is very much possible as they were clearly known to each other and used to work together in property dealing. It is also the contention of the accused that there were property disputes between the complainant and the accused and hence there is no question of any friendly loan being advanced by the complainant to the accused. A perusal of the record shows that the witness summoned by the accused in his defence as DW3 produced the FIR no. 355/19, PS SP Badli between the complainant and the accused. Therefore, as per the accused himself the dispute arose between the parties in 2019, however, the said loan was advanced in 2015 when the complainant and the accused were working CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.12/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:09:21 +0530 together and the said cheque was dishonored in 2016. The dispute, if any, arose later on in 2019 and therefore it cannot be presumed that no friendly relations existed between the parties in 2015 i.e. at the time of advancement of loan. Also, the mere failure of the complainant to place on record his ITR also does not rebut the presumption U/s. 139 NI Act raised in favour of the complainant.
23. The accused has also contended that the present complaint is not maintainable as the signatory of the cheque in question is Aggarwal Builders and not the accused Brijesh Kumar. A perusal of the record shows that the cheque Ex. CW1/1 has been signed by the accused as authorized signatory of Aggarwal Builders. The accused has admitted his signature on the cheque in his notice U/s. 251 Cr.PC as well as in his statement recorded U/s. 313 Cr.PC. Therefore, it is not disputed that the cheque in question bears his signature. The only dispute, which remains is whether Aggarwal Builders was required to be separately impleaded as a party in the present matter by the complainant. On inquiry by the Court, both the parties submitted that Aggarwal Builders is a proprietorship. Therefore, as Aggarwal Builders is only a proprietorship of which the accused is the proprietor and as a sole proprietorship does not have a separate legal entity, there is no requirement of impleading the proprietorship as a separate party. Section 141 NI Act is not applicable to sole proprietorships and hence is not relevant to the present case. Moreover, in the present case in the memo of parties, the complainant has also mentioned Aggarwal Builders in the address of the accused. Hence, CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.13/19 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.03 17:09:34 +0530 the argument of the accused that the case is not maintainable on this ground is not sustainable.
24. The accused has also stated in his statement u/s 313 CrPC that the said cheque along with another cheque was stolen from the drawer of the office table. He has also stated that he has lodged a complaint in the police station regarding the theft of his cheques. However, no such complaint has been placed on record by the accused. In fact the accused has not even examined himself as a witness in the present case and has not placed on record any documents showing that he had lodged a complaint in any police station regarding the theft of his cheques. It is also peculiar that once the accused came to know that his cheques were stolen, he did not intimate the bank to stop payment of his cheques. A prudent man would take all possible measures to safeguard himself once he acquires knowledge that his cheques were misplaced/stolen. However, in the present case neither the accused lodged a complaint with the police with respect to the stolen cheques nor did he intimate the bank about the same so that the bank would stop payment of the said cheques. The said observations raise a doubt on the version of the accused.
25. The next contention of the accused is the impugned cheque was only a blank signed cheque, which was kept in his drawer and no other particulars were filled by the accused. On this aspect, it is submitted by the accused that the rest of the particulars on the cheque were filled by the complainant for CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.14/19 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.03 17:09:41 +0530 his own use and thus, the cheque has been materially altered by the complainant. It is thus, argued that this material alteration renders the cheque void, on account of Section 87 of the NI Act.
26. However, the above stated defence will not be of any aid to the accused, in light of Section 20 in The Negotiable Instruments Act, 1881. The same is reproduced below:
"20. Inchoate stamped instruments.--Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and 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 may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
27. Section 20 NI Act clearly states that the drawer of the cheque gives authority to the payee to fill in the incomplete details on the cheque. In the present case also it can be safely deduced that the drawer/accused gave authority to the payee/complainant to fill in the details on the cheque in CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.15/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:09:51 +0530 question in view of Section 20 NI Act. Further, the clear position of law has also been enunciated in the recent judgment of the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197] wherein it was held that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This, by itself, does not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. The Court further went onto hold that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
28. The accused has admitted issuance of the impugned cheque as the signatures have not been denied. Thus, mere filling of the particulars on the cheque by the complainant does not amount to any material alteration in view of the aforementioned position of law. Therefore, the ground of impugned cheque being void, on account of material alteration, also stands rejected.
29. The witnesses examined by the accused in his defence as DW1 and DW2 also do not help the case of the accused as they have stated in their cross examination that they have no personal knowledge regarding the transaction between the complainant and the accused. They have only CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.16/19 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.03 17:10:03 +0530 deposed with respect to the complainant and the accused working together in property dealing. As they have no personal knowledge regarding the transaction in question, their testimonies are of no use to the accused and do not corroborate his stance.
30. In view of the aforesaid discussion, it is observed that the accused has failed to raise a probable defence through the crossexamination of the complainant and also that he has not led any evidence himself to raise a probable defence. He has not been able to rebut the presumption that is raised in favour of the complainant with respect to the existence of a legally recoverable debt or liability of Rs. 5,00,000/. Thus, the first ingredient of Section 138 NI Act has been proved by the complainant.
31. The second ingredient of the offence is that the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. Perusal of record shows that complainant has already proved the bank return memo through Ex. CW1/2 and the accused has not denied his signatures upon the said cheque Ex. CW1/1 and further, has not assailed the factum of the said cheque being dishonored. Thus, the second ingredient of the offence is also satisfied in the present case.
32. The third ingredient is that the drawer of such cheque fails to make CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.17/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:10:09 +0530 the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money. In the present matter, the complainant in the notice under section 251 CrPC has denied receiving the legal notice, however in the statement under section 313 CrPC, the accused has admitted to receiving the legal notice. The contrary stand taken by the accused with respect to the receipt of the legal notice does not help his case and raises doubt on his veracity. On the other hand, the complainant has also placed on record; Ex. CW1/4 i.e. postal receipts, courier receipts i.e. Ex. CW1/5 Ex. CW1/6 and the tracking reports, thus, the presumption of service of legal notice can also be raised in view of Section 27 of General Clauses Act. The said presumption has not been displaced on behalf of the accused.
33. Moreover, in view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. In the present matter, admittedly, the accused has failed to pay the cheque amount within a period of 15 days from the date of CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.18/19 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:10:16 +0530 service of summons of his appearance before this court. Therefore, in view of the above stated Judgment passed by Hon'ble Apex Court, the fact of non- service of legal demand notice will not come to aid the accused. Hence, the third ingredient of the offence under Section 138 NI Act also stands proved by the complainant.
34. In view of the aforesaid discussion, this Court is of the view that the contentions of the Ld. Counsel for accused are not sufficient to rebut the presumptions raised in favour of complainant and the same are liable to be rejected.
35. The accused has failed to shake the credibility of CW1 i.e. the complainant. The defence of accused appears to be an afterthought and same is baseless. The accused in this case has not adduced any evidence to rebut the presumptions raised against him.
36. In the light of above discussion, this court is of view that accused Brijesh Kumar @ Neetu is guilty for the offence punishable u/s 138 N.I. Act and is accordingly convicted for the same. Let the convict be heard on the point of sentence separately.
Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.03 17:10:21 Announced in open Court (MANSI MALIK) +0530 on 2nd September, 2022 Metropolitan Magistrate03, NorthWest, Rohini Courts, Delhi CC no. 24134/2016 Mukesh Garg Vs. Brijesh Kumar @ Neetu Page no.19/19