Delhi District Court
Amit Chikkara vs Harish Bhatia on 16 February, 2024
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 05, NORTH-WEST
ROHINI COURTS: DELHI
Amit Chhikara Vs. Harish Bhatia
CC No. : 23898/2016
U/s : 138 Negotiable Instruments Act,1881
P.S. : Kanjhawla
JUDGMENT:
1. Criminal Case No. : 23898/2016 2. Date of institution of the case : 20.05.2015 3. Name of the complainant : Amit Chhikara 5. Name and parentage of accused : Harish Bhatia S/o Sh. J. N. Bhatia 6. Offense complained or proved : 138 NI Act 7. Plea of the accused : Pleaded not guilty 8. Date on which order was reserved : 18.01.2024 9. Final order : Convicted 10. Date of final order : 16.02.2024
1. Vide this judgment, this Court shall dispose of the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. The facts giving rise to the instant complaint case, as per the complainant, may be enumerated as hereafter: the complainant advanced a friendly loan of Rs. 1,00,000/- (One Lac) to the accused on account of his dire financial needs by way of cash, for a period of nine months and the accused also executed a promissory note dated 18.06.2014 at the time of advancement of loan. The accused however, failed to pay the said loan amount in accordance with his promise and thereafter, issued cheque bearing no. 015210 dated 14.03.2015 for an amount of Rs. 1,00,000/- drawn on Oriental Bank of Commerce, Karampura Branch, Delhi, in favour of complainant in discharge of his loan liability. The complainant presented the said cheque with his banker, but the same was dishonored with remarks 'Account Closed" vide return memo dated 23.03.2015. Thereafter, the complainant sent a legal demand notice dated 18.04.2015 to the accused but the accused failed to make the payment of the cheque amount in favour of the complainant despite lapse of statutory period. Thus, the complainant was constrained to institute the present complaint case.
3. Upon appreciation of pre-summoning evidence affidavit, accused was summoned for an offence punishable under Section 138 of NI Act and notice under Section 251 of Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.) was served upon accused on 30.04.2019, to which he pleaded not guilty and claimed trial. The accused denied his liability towards complainant and stated that he had taken an amount of Rs. 50,000/- from the accused and had already returned Rs. 60,000/- to him. He stated that he had issued a blank signed cheque to the complainant. He admitted his signatures on the cheque in question.
4. Thereafter, the permission was granted to accused to examine the complainant's witnesses as per Section 145 (2) N.I. Act.
5. During CE, the complainant tendered his affidavit Ex. CW-1/1 in his examination-in-chief and relied upon the following documents which were duly exhibited and marked as Ex. CW-1/A to Ex. CW-1/F, respectively i.e. promissory note dated 18.06.2014 which is Ex. CW-1/A, cheque bearing no. 015210 dated 14.03.2015 for an amount of Rs. 1,00,000/- drawn on Oriental Bank of Commerce, Karampura Branch, Delhi (cheque in question) which is Ex.CW1/B, bank returning memo dated 23.13.2015 which is Ex.CW1/C, legal demand notice which is Ex.CW1/D, postal receipts which are Ex.CW1/E and tracking report which is Ex.CW1/F.
6. The Complainant examined only one witness i.e. himself as CW-1 and he was duly cross examined at length by the Ld. Counsel for accused. CE was closed vide order dated 14.10.2022.
7. The accused was, thereafter, examined U/s 281 r/w Sec 313 Cr.P.C. on 01.12.2022, wherein entire incriminating evidence was put to him. At this stage, he has stated that he was falsely implicated in the present case. The accused also led evidence in his defence and examined himself as DW-1. DE was closed on 25.08.2023 and matter was fixed for final arguments.
8. I have considered the rival submissions of the parties and perused the entire evidence led by the parties and the material available on record.
9. During the course of final arguments, Ld. Counsel for complainant argued that there exists a legally enforceable liability in favour of the complainant on behalf of the accused. He further argued that the cheque in question (Ex.CW1/B) was issued to the complainant and the signatures have already been admitted by the accused. He further argued that upon presentation, the cheque has been dishonored and the same has been proved by the cheque return memo which is Ex.CW1/C. Further, he argued that the legal demand notice (Ex.CW1/D) was duly served upon the accused. He further argued that the complainant did not receive any payment after service of legal notice. Ld. Counsel for complainant submitted that all the ingredients of Section 138 NI Act are fulfilled and the accused should be convicted.
10. Per contra, Ld. Counsel for accused argued that the complainant has misused the cheque in question as same was never given to him by the accused. He further argued that the cheque in question was given by the accused to one of the friend of complainant namely, Suresh from whom he had taken loan of Rs.50,000/- against which an amount of Rs. 60,000/- has already been paid by him to said person namely Suresh. It is further argued there was no advancement of friendly loan by the complainant in favour of accused and the complainant has misused blank signed cheque of the accused. It is also argued that the complainant has also not filed his ITR depicting the advancement of loan to the accused nor has proved his financial capabilities/sources of income, which makes the entire story of complainant doubtful. He further argued that the complainant has failed to establish his case and hence, the accused deserves to be acquitted.
11. In the backdrop of the foregoing factual score, this Court shall now proceed to examine the position of law governing the facts peculiar to the present case.
12. The following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of NI Act, which has also been observed by the Hon'ble Supreme Court of India in the matter of Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice"
The above mentioned proposition of law was reiterated by the Hon'ble Supreme Court in the matter of Aparna A. Shah v M/s Sheth Developers P.Ltd & Anr. (2013)8 SCC 71.
13. It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offences under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act.
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, endorsed, 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".
14. Once the foundational facts that the cheques in question bears the signatures of the accused and the same has been drawn on account maintained by him are established, a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration by virtue of Section 118(a) r/w Section 139 of NI Act. It is a mandatory presumption, though the accused is entitled to rebut the said presumption.
15. The principles pertaining to the presumptions and the onus of proof were also summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence."
16. As discussed above, it is clear that the accused need not discharge burden of proof beyond the shadow of reasonable doubt rather needs to prove his defence upon preponderance of probabilities. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore, the prosecution cannot stand or the accused can give his version of the story and say that on the basis of his version, the story of the complainant cannot be believed. In the first situation, the accused has nothing to do except to point inherent inconsistencies in the version of the complainant.
17. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above, if an accepted signed cheque has been produced the complainant, then there cannot be any inherent lacuna in the existence of the liability. Recently, the Hon'ble Supreme Court in Kalamani Tex & Anr. v. P. Balasubramanian (2021 SCC Online SC 75) held as follows:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
But then, definitely, accused can create some loopholes in the story of the complainant. Accused can discharge his burden by demonstrating the preponderance of probabilities.
18. Further, it is a trite law that while deciding a complaint U/s 138 NI Act, the Court has to firstly see, whether the Complainant has successfully established the ingredients constituting the offence under the said section or not. The ingredients of Section 138 NI Act which are required to be established by the Complainant have been set out by the Hon'ble Supreme Court in Jugesh Sehgal (Supra). Once these ingredients are established by the Complainant and the Accused admits the issuance of the cheque/his signatures, the presumption U/s 118 (a) and 139 of the NI Act arises.
19. Having discussed the essential ingredients for constituting the offence U/s 138 N.I. Act, it would be apposite to discuss the evidences led by the parties prior to appreciation of merits of the contentions advanced on behalf of the parties.
20. As stated earlier, the complainant examined himself as CW-1. The complainant Amit Chhikara was examined as CW-1 and adopted the pre- summoning evidence during his examination-in-chief. During his cross- examination, he stated that he deposed that he used to visit the toys shop of accused for purchasing toys from him. He deposed that the accused approached him for grant of friendly loan in June,2014 as he was in need of money for purchasing the items for his shop and he made payment of Rs.1 00,000/- to accused within 3-4 days in cash. He deposed that he used to have cash available with him at his home. He further deposed that he had taken the cheque from the accused in lieu of amount advanced by him. He could not state whether the accused had filled all the particulars on the cheque or that he only signed the same. He deposed that he is having income from agricultural work and he is not an income tax assessee. He stated that no other security except cheque and ID card of accused was taken by him. He deposed that it was an interest free loan. He denied that he is engaged in money lending business. He denied that he had given Rs.50,000 to accused or that accused has already returned Rs. 60,000/- to him. He denied that he alongwith 5-6 other persons is engaged in money lending business or that he used to give money to the shop keepers on daily basis. He denied that he has misused the cheque in question by filling amount of Rs. 1,00,000/- instead of Rs.50,000/-.
21. Whereas, accused Harish Bhatia examined himself as DW-1 in his defence evidence and deposed that he had taken a loan of Rs. 50,000/- from one Suresh Kumar who was having office of finance in the name of Mahalaxmi Finance at Sector-3, Rohini, Delhi. He further deposed that the said loan was payable on daily basis and after deduction of interest, he received Rs. 44,000/- and paid Rs.60,000/-. He produced the copy of receipt showing the payment made by him as Mark-A. He deposed that money was taken by him from Suresh Kumar and he issued a blank signed cheque alongwith blank signed promissory note to said Suresh Kumar. He deposed that complainant is also partner in the company of Suresh Kumar and he had seen the complainant for the first time in Court. During his cross examination, he denied that he had taken a sum of Rs.1,00,000/- from complainant or that he promised him to return the said amount within nine months. He denied of having issued cheque in question towards the return of said loan amount in favour of complainant. He admitted his signatures on promissory note Ex.CW1/A. He admitted that copy of cards showing payment of money by him pertains to Jai Sai Ram Finance. He denied that he is liable to make payment of Rs.1,00,000/- in favour of complainant towards the re-payment of loan amount.
22. Having discussed the position of law on the subject and the evidences led by the parties, now let us advert ourselves to the merits of the contentions advanced on behalf of parties.
23. Coming to the first ingredient of the offence, which is that 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. It is stated by the complainant that the complainant had extended a loan of Rs. 1,00,000/- to the accused who had issued the cheque in question to the complainant for the discharge of his legally recoverable liability, however, upon presentation, the cheque in question had got dishonored.
24. Upon analyzing the statements of the accused recorded u/s 251 Cr.P.C, Section 313 Cr.P.C. and in his testimony as defence witness DW-1, what comes out is that the accused has admitted the cheque to be issued by him after signing upon the same.
Admittedly, the cheque in question in the present case has been drawn from the account of accused Harish Bhatia. In his defence to notice u/s 251 Cr.PC., in his testimony as DW-1 as well as statement u/s 313 Cr.PC., the accused has not disputed the factum of signing the cheque in question and has rather stated that the cheque in question was handed over by him to one Suresh Kumar from whom he had taken loan. Therefore, it can be fairly stated that the cheque in question has been drawn from the account of the accused.
25. In view of the position of law discussed in Basalingappa vs. Mudibasappa (Supra), what comes to the fore is that once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. The admission of the accused of his signatures on the cheque in question, the factum of issuance of the cheque and in view of the fact that the cheque in question has been drawn from the account of the accused, a statutory presumption is bound to be raised in favour of the complainant that the cheque in question was issued by the accused for the discharge of a legally recoverable debt or liability.
26. Once the statutory presumption has been raised in favour of the complainant, the burden of proof now lies upon the accused to rebut the statutory presumption as per the reverse onus of proof that now shifts upon the accused.
27. The defence of the accused has been stated by his in his examination in chief as defence witness DW-1 wherein it has been stated by him that he had not taken the loan from the complainant and had rather taken loan of Rs. 50,000/- from one Suresh Kumar to whom he had also repaid the an amount of Rs. 60,000/-. He further stated that the blank signed cheque in question was only given by him to Suresh Kumar for security purposes and not for the purpose of discharge of any legal liability owed to the complainant.
28. On account of a statutory presumption raised in favour of the complainant, the onus now falls upon the accused to prove his defence and the presumption cannot be rebutted simply by placing reliance on oral averments. It is necessary for the accused to substantiate the defence taken by him either by bringing forth relevant evidence as proof or by pointing out to such inconsistencies or contradictions in the case of the complainant which would overthrow the complainant's case and make the defence of the accused probable.
29. In support of the defence taken by him, the accused has examined himself as a defence witness DW-1. Even though, in the defence raised by the accused in notice u/s 251 Cr.PC, he admitted of having taken an amount of Rs. 50,000/- from the complainant and returned Rs.60,000/- against that amount but conversely, in his statement u/s 313 Cr.PC, he stated that he does not know the complainant and had given blank signed cheque to one of the friend of complainant. He also stated that he had availed a loan of Rs. 50,000/- from one Suresh Kumar of whom, he came to know from an advertisement pamphlet. He also stated that an amount of Rs. 45,000/- was received by him after deduction, against which he has already made payment of Rs. 60,000/- but the complainant has filed the present compliant case falsely by misusing the cheque in question.
The stance of the accused again changed in his testimony as DW-1 wherein, he deposed that he had availed loan of Rs. 50,000/- from one Suresh Kumar who was having office of finance in the name and style of Mahalaxmi Finance in Sector-3 Rohini, Delhi and had given his blank signed cheque alongwith blank signed promissory note to him towards the security of said loan. The apparent inconsistency in the versions raised by the accused during the different stages of the trial is evident from record. Pertinently, in his statement us/ 281 r/w 313 Cr.PC, the accused contradicted his initial version that he handed over the blank signed cheque to the complainant. The relevant part of statement of accused u/s 313 Cr.PC. dated 01.12.2022 is reproduced herein after for the sake of brevity on the point.
"Q.5 Anything else you want to say?
Ans. It is a false case against me. Complainant alongwith five other persons were running the business of finance. I do not know the complainant. I had given a blank signed cheque to one of the friend of complainant. I took a loan from one Sh. Suresh to the tune of Rs.50,000/-, out of which, Rs.45,000/- were received by me in cash after deducting the interest of remaining Rs.5,000/-. After watching the pamphlet, I came to know about the fact that loan is being distributed, where phone number was mentioned. I took the loan for running a shop. I had to give Rs. 60,000/- to Sh. Suresh, which I had already paid. After giving of payment, complainant has falsely filed the present case upon me. I have already annexed copy of loan card".
The said stance of accused taken during the course of his examination u/s 281 r/w 313 Cr.PC. again saw a sudden shift during the stage of defence evidence wherein the accused examined as DW-1 failed to narrate about the facts mentioned during statement us/ 281 r/w 313 Cr.PC. More specifically, during DE, the accused failed to state that the complainant was running finance business alongwith above named Suresh or that he had given the blank signed cheque to the friend of the complainant and rather he stated that said Suresh was running a finance office in the name of Mahalaxmi Finance at Rohini Delhi and he had availed loan on interest from said Suresh against the security of which, he handed over the blank signed cheque and promissory note to him.
These contradictory stands raised by the accused during the different stages of trial clearly gives rise to an inference that the cheque in question must have been issued by him in complainant's favour in discharge of a legal liability towards him. This inference further gains strength from the facts that accused in his testimony as DW-1 admitted about the financial crisis and need of money for business purpose. Surprisingly, in order to discredit the version of complainant qua advancement of loan to him, the accused has relied upon the copy of one Payment Receipt Mark-A stating that the said record reflects the entries regarding the return of Rs.60,000/- by him in favour of Suresh Kumar against the amount of Rs.50,000/- which was availed by him as loan. However, the said document cannot be read in the evidence for a simple reason that same has not been proved in accordance with law by the accused. The mere placing on record said document by the accused does not exonerate him from the responsibility to prove the same in accordance with law. Even otherwise also, the mere perusal of the said document also suggests that same pertains to one Jai Sai Ram Finance and Properties which also runs in stark contradiction of the version made by accused during his defence evidence that he had availed loan from Suresh Kumar who was running his finance business in the name and style of Mahalaxmi Finance. The accused has failed to establish the connection between the complainant or said Suresh Kumar with Jai Sai Ram Finance nor has established the receipt relied upon by him bears the signatures of the complainant or said Suresh Kumar. These facts and circumstances collectively make the defence of accused in-creditable. The fact that the accused has also admitted his signatures on promissory note Ex.CW1/A is in itself sufficient to presume the due execution of said promissory note by him in favour of the complainant at the time of advancement of friendly loan to him.
30. The defence raised by the accused that he had handed over the cheque in question being blank signed security cheque in lieu of loan advanced to him by Suresh has not been duly established by him. It is a matter of record that the accused has not opted to examine said Suresh as a defence witness to establish his version, for the reasons best known to him, which further fortifies the inference that the cheque in question was issued by him in favour of the complainant in discharge of his legal liability.
31. Going by the above discussion, the accused has failed to prove his defence that the cheque in question was given as a security for loan advanced by Suresh and that he did not owe any liability towards the complainant.
32. It is also argued that the complainant has not furnished any record with respect to either the advancement of the money to the accused or the source of the generation of the money by the complainant.
The burden was upon the accused to rebut the statutory presumption raised in favour of the complainant as per section 118 and section 139 of the NI Act and the burden of the accused cannot be thrusted upon the complainant by bringing forth such an argument that the complainant has himself not placed on record any documentary evidence to prove his case. It was only in a circumstance where the accused would have been able to discharge his burden of proof and rebut the statutory presumption taken in favour of the complainant, that the burden would have been shifted upon the complainant. In the instant case, the accused has failed to discharge his initial onus of proof either by establishment of his own defence or by creating a doubt in the mind of the court upon the complainant's case and hence, the accused has failed to rebut the presumption taken in favour of the complainant.
33. Besides this, the complainant CW-1 has himself stated in his cross examination that he is having income from agricultural work and sale of agricultural products. There is nothing on record that would lead the court to entertain a doubt upon the financial capacity of the complainant.
34. It has also been stated by Ld. Counsel for accused that the complainant has not disclosed his actual income and loan amount in his income tax returns and thus, as per the provisions of the Income Tax Act, due to non-disclosure of the loan amount in the ITRs, the case of the complainant has failed.
As far as the contention of the Ld. Counsel of the accused is concerned, it is seen that the complainant CW-1 in his cross- examination has admittedd that he does not file ITRs. Non-disclosure of actual income or non-mentioning in the ITR of any advances given may entail consequences under the Income Tax Act but the same does not affect the case of the complainant. The liability of the accused under section 138 of the N.I. Act cannot be done away with simply because the complainant did not mention his actual income or the loan amount in his ITR.
35. Considering the overall facts and circumstances, the accused has failed to discharge the burden of proof that was placed upon him for showing that the cheque in question was not issued for the discharge of a legally recoverable debt or liability that was owed to the complainant. The accused has therefore, failed to rebut the presumption taken in favour of the complainant. To the contrary, the complainant has been able to successfully prove that the cheque in question was issued by the accused for the discharge of a legally recoverable debt that was owed by the accused to the complainant. Hence, the complainant has been able to successfully prove the first ingredient of the offence u/s 138 NI Act.
36. 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 honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
37. The cheque in question upon presentation in the bank was dishonored on 23.03.2015. A perusal of Ex.CW1/C shows that the cheque in question, on being presented in the bank was returned dishonored with remarks "Account closed". It is a settled position in law that dishonor of cheque given a security attracts section 138 NI Act and cases where the cheques are dishonored for the reasons "Payment Stopped" or "Account Closed", also falls within the ambit of this provision. (Reliance placed on case titled "Payal Malhotra Vs. Sulekh Chand W.P (CRL.) 1366/2023 decided on 29.11.2023".)
38. Thus, in the opinion of the court, the second ingredient of the offence is also met in the present case.
39. As far as the third ingredient of the offence is concerned, which is that the drawer of such cheque fails to make the payment of the cheque amount 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. The legal demand notice, the postal receipts as well as the tracking report of the receipt of the legal notice, which are Ex. CW1/D to Ex. CW1/F, respectively are present on record.
40. The accused has stated that has denied the receipt of legal notice in his statement u/s 313 Cr.PC.
The careful perusal of the legal demand notice, courier receipt, postal receipts, tracking report and reply sent by complainant, sufficiently establishes that despite delivery of the legal notice, the accused had failed to make the payment to the complainant that he was liable to pay within 15 days from the date of receipt of notice. In this regard, it is pertinent to mention that legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. Section 138 of the Negotiable Instruments Act mandates the issuance of the statutory notice as a pre- condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice, the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant. The careful perusal of the record would reflect that the address of the accused as mentioned on his bails bonds is the same on which the legal demand notice was stated be delivered by the complainant. Same address has been mentioned in the vakaltnama filed on behlf of the accused and also during his testimony as DW-1 dated 25.08.2023. The accused has not raised the defence that he was not residing at the address on which the notice was sent by the complainant or that notice was sent by the complainant to an incorrect address. Accordingly, the presumption under Section 27 of the General Clause Act, 1897 can be safely drawn in the present case.
41. Hence, the third ingredient of the offence u/s 138 N. I. Act has also been proved by the complainant.
42. Having considered the entire evidence, this court is of considered opinion that the complainant has successfully proved all the essential ingredients of Sec.138 N.I. Act. Accordingly, accused Harish Bhatia is held guilty for committing the offence punishable u/s 138 N.I. Act. He is hereby convicted for the offence u/s 138 N.I. Act.
43. Let he be heard on the point of sentence separately.
Announced in the open court on 16th Day of February, 2024. (Rishabh Kapoor) MM-05 North West District Rohini Courts, Delhi