Delhi District Court
Ajay Kumar vs . on 25 October, 2013
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IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
AJAY KUMAR
Vs.
MANOJ SOLANKI
C.C. No.1184/13
P.S.: Dwarka South U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 16.07.2013
b) Name of Complainant Ajay Kumar, Chamber No.724,
Lawyer's Chamber Block, Dwarka
Courts, Delhi
c) Name of the accused and Manoj Solanki S/o Sh. Tara Chand
Address: Solanki, R/o WZ149C, Near Water
Tank, Palam Village, New Delhi45.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 25.10.2013
h) Date of institution of case: 17.07.2013
i) Date of decision of case: 25.10.2013
CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI
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Brief facts and reasons for decision of the case:
1. The present case has been instituted upon a complaint made by Ajay Kumar (hereinafter referred as 'the complainant') alleging that Manoj Solanki (hereinafter referred as 'the accused') approached him in the month of October, 2012 for a friendly loan in sum of Rs.1,32,000/ as same was required by the accused for some business purpose. Respecting the friendly relations with the accused, the said loan was provided to him. In discharge of legal liability arising out the aforementioned loan, accused issued the impugned cheque bearing no.579535 dated 29.04.2013 for sum of Rs.1,32,000/. On presentation, the cheque was returned unpaid vide bank memo dated 16.05.2013 as the payment was stopped by the drawer. On receipt of intimation of dishonour, a legal demand notice dated 01.06.2013 was sent to the accused and allegedly same was served upon him also. As the accused failed to make the payment within the statutory period, therefore, the present complaint has been filed u/s. 138 N.I. Act.
2. On Appearance, a notice u/s.251 CrPC was served upon the accused on 29.08.2013, to which he pleaded not guilty and claimed trial. CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 2 of 8 3
3. During the complainant's evidence, the complainant, the sole witness, filed his evidence by way of affidavit Ex.CW1/A. The other documents, filed and relied upon by the complainant are: ● Impugned Cheque (Ex.CW1/1), ● Cheque Returning Memo (Ex.CW1/2), ● Legal Demand Notice (Ex.CW1/3) and ● Postal Receipts (Ex.CW1/4, Ex.CW1/5 & Ex.CW1/6)
4. The complainant was cross examined at length by ld. Counsel for the accused.
5. The complainant's evidence was followed by statement of accused u/s.313 CrPC wherein entire incriminating evidence was put to the accused. During the statement, accused stated that he had borrowed a sum of Rs.1,00,000/ from the complainant and returned Rs.93,000/ out of the same. Although the signatures on the impugned cheque are not denied by the accused but it is stated that it was a lost cheque and was CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 3 of 8 4 never issued towards any legally enforceable liability. Accused also denied the receipt of legal demand notice.
6. During the statement u/s.313 CrPC, the accused expressed his willingness to lead the defence evidence but no defence evidence was led despite given sufficient opportunities. The defence evidence was closed accordingly on the statement of the accused.
7. After hearing the brief arguments from both the parties, I proceed with the judgment.
8. Section 118 (g) of Negotiable Instrument Act provides a presumptions in favour of every holder of a negotiable instrument that a holder is a holder in due course unless contrary is proved. The burden to prove anything contrary to this presumption lies upon the drawer of the cheque. In the present case, this burden is for the accused to discharge. CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 4 of 8 5
9. During the statement u/s.313 CrPC, accused stated that impugned cheque was a lost cheque which was misused by the complainant. No witness or evidence has been produced by the accused to corroborate this contention. When the accused had lost the cheque, he should have written a letter to his banker and should have produced the copy before the court. He could also have made a complaint to police or some other competent authority, but surprisingly no such steps were taken.
10. Further, accused has admitted during the statement u/s.313 CrPC that he had availed a loan for sum of Rs.1,00,000/ from the complainant. It is very interesting and unreliable coincidence that accused's allegedly lost cheque was found and misused by a person who had advanced loan to him. This fact, in my considered opinion, is clearly indicating towards another highly probable probability that accused had issued the impugned cheque to the complainant and subsequently concocted the story of lost cheque to evade his liability. In simple words, the theory of lost cheque is neither convincing nor proved.
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11. Further, the next defence pleaded by the accused is that legal demand notice was not served upon him. The legal demand notice dated 01.06.2013 has been filed on record as Ex.CW1/3. The postal receipts Ex.CW1/4 and Ex.CW1/5 are also on record. These receipts are sufficient to prove the fact that notice was sent to the accused. As per the computer generated track report filed on record as Ex.CW1/6, the said article was delivered also. These documents are sufficient to raise the statutory presumptions u/s.27 of General Clauses Act that notice was served upon the accused. Nothing produced by the accused to prove that address mentioned on the legal demand notice is not the correct address. Hence, the presumption u/s. 27 of General Clauses Act gone unrebutted.
12. Further, the summons issued against the accused from the court were received back executed. Now, even if the accused pleads the defence that notice was not served upon him, he cannot escape his liability.
13. At the outset, the judgment passed by Hon'ble Supreme Court of India in the matter of "C. C. Alavi Hazi Vs. Palapetty Mohd. & Anr." CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 6 of 8 7 reported in (2007) 6 Supreme Court Cases 555 would be very relevant to be mentioned. The relevant observations made by Apex Court of India are: "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, can not obviously contend that there was no proper service of notice as required Under Section 138, by ignoring statutory presumption to the contrary Under Section 27 of G. C. Act and 114 of the Evidence Act." Hence, contention of non service of notice is meaningless.
14. As far as legal liability is concerned, section 118 N.I. Act again raise a presumption that every negotiable instrument is made or drawn for consideration and section 139 N.I. Act raise another presumption that unless the contrary is proved it shall be presumed that cheque was issued CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 7 of 8 8 in discharge of debt or other liability. No doubt, the presumptions are rebuttable but burden to rebut these presumptions again lies upon the accused. But neither any evidence was produced nor anything material in his favour surfaced during the cross examination of the complainant. Hence, the presumption again gone unrebutted.
15. The dishonour of impugned cheque is proved by the cheque returning memo Ex.CW1/2. As per which, the cheque was dishonoured as payment was stopped by drawer. This fact is further corroborated by admission of the accused during the statement u/s.313 CrPC wherein he stated that he had stopped the payment of the cheque.
16. With the afore noted discussions, I am of the considered opinion that all the ingredients of offence u/s. 138 N.I. Act are proved. Accused is liable to be and accordingly convicted u/s.138 N.I. Act. (Announced in the open court on 25.10.2013) This Judgment contains 8 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.1184/13; AJAY KUMAR Vs. MANOJ SOLANKI Page 8 of 8