Delhi District Court
Abn Amro Bank vs Shoobhankar Sagar on 15 July, 2011
IN THE COURT OF SH.NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE,
SPECIAL COURT - 06, DWARKA COURTS, NEW DELHI.
ABN AMRO BANK
VERSUS
SHOOBHANKAR SAGAR
P.S.: CONNAUGHT PLACE
U/S: 138 NEGOTIABLE INSTRUMENTS ACT
1. Serial No./CC No. of the case : 2219/1
2. Name of the complainant : ABN Amro Bank
A Public Ltd. Company,
Interalia Having its Office at
7th Floor, Hansalya Building, 15, Barakhamba
Road, New Delhi 110 001.
3. Date of institution : 07.02.2008
4. Name of the accused, his : Shoobhankar Sagar
parentage and residence 4/2296 Lane 5 Goverdhan Bihari Colony, New
Delhi 110 032
Also at :
Shoobhankar Sagar,
A48, Sector 58, Noida - 201301
5. Date when judgment was : 26.05.2011
reserved
CC No. 2219/1 1 of 18
6. Date when judgment was : 15.07.2011
pronounced
7. Offence complained of and : Section 138 Negotiable Instruments Act proved
8. Plea of accused : Pleaded not guilty and claimed trial
9. Final Judgment : Accused found guilty of offence under Section 138 Negotiable Instrument Act and convicted for the same.
: J U D G M E N T :
1. Vide this judgment, I shall decide the present complaint filed by the complainant ABN Amro Bank under Section 138 of Negotiable Instruments Act (hereinafter referred to as NI Act) against the accused Shoobhankar Sagar.
2 Factual matrix of the case is that the complainant company is a bank incorporated as public limited company having its office in New Delhi. It is averred that accused took a loan from the complainant under the loan agreement number 9342164 and for the repayment of the amount accused had issued 3 post dated cheques (cheque number 406304,406305 and 406306) to the complainant company dated 27.12.2007 drawn on ICICI Bank amounting to Rs.11,390/ each. The complainant company presented the aforesaid cheques for encashment with their bank but the said cheques were returned back unpaid with the remarks "Funds Insufficient". Thereafter, complainant got issued legal notice through speed post on CC No. 2219/1 2 of 18 05.01.2008 calling upon the accused to make the payment of the cheque amount within 15 days of the notice but accused failed to pay the amount of the dishonored cheques thereby committing offence under Section 138 of NI Act for the prosecution of which the present complaint is filed.
3 After taking cognizance of the offence summons were issued to the accused post which he entered appearance and was admitted to bail on 20 th May, 2009. Thereafter, notice under Section 251 Cr.P.C encompassing all the accusations against the accused was served upon him to which he pleaded not guilty and claimed trial.
4 In complainant's evidence the complainant got examined Mr. Charandeep Singh, as CW1 who tendered is evidence by way of affidavit Ex.CW1/1. Accused was given an opportunity to cross examine the complainant on 28.08.2009. Accused submitted that he did not want to cross examine the complainant and in view of the submission of the accused complainant's evidence got closed vide order dt. 28.08.2009. Statement of accused was recorded under Section 313 Cr.P.C wherein he admitted the issuance of the cheques in question and also admitted receiving of legal demand notice sent by the complainant and the matter got fixed for defence evidence.
5 In the meanwhile accused moved an application under Section 311 Cr.P.C calling the complainant's witness for cross examination. The said application of the accused was allowed and Sh. Ankit Goel (AR for the complainant) was examined who tendered his evidence by way of affidavit Ex.CW1/2 and also relied upon other documents that is the cheques in question Ex.CW1/B1, Ex.CW1/B2 and Ex.CW1/B3, returning memo dated CC No. 2219/1 3 of 18 26.12.2007 Ex.CW1/C1, Ex.CW1/C2 and Ex.CW1/C3, legal notice Ex.CW1/D, postal receipts Ex.CW1/E and statement of account Ex.CW1/F. In cross examination AR for the complainant stated that loan was disbursed in favour of the accused for a sum of Rs. 4,00,000/ on 20.09.2006 and the tenure of the repayment of the loan was 48 months. AR for the complaint further deposed that the cheques in question were given by the accused at the time of disbursal of the loan and also stated that mode of repayment of the loan was through cheques. It is further deposed that equated monthly installment of the accused was Rs. 11,390/ and till July 2007 accused had paid 10 EMIs to the complainant. AR further deposed that the cheques in question were not a security cheque but were towards the repayment of the loan.
6 In defence evidence accused got himself examined as DW1 wherein he stated that he had given 6 blank signed cheques for security purpose before the disposal of the loan and the date and amount on the cheques were not written by him. It is further deposed that loan was to be repaid through Electronic Clearance System (ECS) mode and at the time of giving of the aforesaid cheques he had no liability towards the complainant bank. DW1 further stated that he did not receive any legal demand notice from the complainant. In cross examination accused admitted to have received a loan of Rs. 2,50,000/ from the complainant company in 2006 and monthly installment was Rs. 11,390/ . Accused denied the suggestion that cheques in question were given by him as he had liability towards the complainant company. Accused admitted that the cheques in question bear his signatures. It is further admitted by the accused that he received the court summon at the address mentioned in the legal demand notice Ex.CW1/D but denied receiving any legal notice at the address mentioned in the legal notice. DE stood closed vide order dt. 30.04.2011.
CC No. 2219/1 4 of 18 7 After adducing defence evidence, Learned counsels for complainant and accused
addressed their respective final arguments at length. Before appreciating the evidences andz arguments of both the parties, it would be appropriate to advert to the relevant provisions of N.I Act.
Section 138 of N.I Act reads as under
Section 138 of NI Act reads as under: S. 138 Dishonour of cheque for insufficiency, etc., of funds in the account - 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 make with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to twice the amount of the cheque or with both.
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer CC No. 2219/1 5 of 18 of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
8 Section 138 of the NI Act has three ingredients, viz., (i) that there is a legally enforeceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre supposes a legally enforeceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a compliant petition can be acted upon by a court of law.
9 I would now embark on the evidences and rival contentions advanced by counsel of the parties and give my findings thereon.
10 It is contended by learned counsel for the accused is that cheques in question were blank undated cheques signed by the accused but rest of the contents were filled by the complainant. It is further contended that date on the cheques is in rubber stamp which clearly establishes material alteration of cheques by the complainant. On the other hand, learned counsel for the complainant has refuted the aforesaid contention by stating that accused had issued post dated cheques at the time of disbursal of the loan for the repayment of the loan.
CC No. 2219/1 6 of 18 With regard to this argument, I would like to refer to Section 20 of N.I Act which contains provision regarding "inchoate instrument".
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 [India], and either wholly blank of 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; provide 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.
11 In Moideen v. Johny 2007(1) Civil Court Cases 220 (Kerala) , it has been held by Kerala High Court in Paragraph 6 that: "...........Even if a blank cheque is issued as security, the person in possession of the blank cheque can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another, it gives an authority on the person to whom it is issued, to fill up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank."
12 In "Ravi Chopra v. State and another" 2008 (102) DRJ 147, it was held by Hon'ble Justice Murlidhar, that even if the body of the cheque is filled in different ink by some person other than the accused, still the instrument will be valid. Following paragraphs are worth mentioning: "18. Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with CC No. 2219/1 7 of 18 the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person 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." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course."
"19. The above provisions have to be read together with Section 118 NI Act which sets out various presumptions as to negotiable instruments. The presumption is of consideration, as to date, as to time of acceptance, as to transfer, as to endorsement, as to stamp. The only exception to this is provided in proviso to Section 118 which reads as under:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
CC No. 2219/1 8 of 18 "20. A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act."
13 Also in a recent Judgment in "D. Atchyutha Reddy v. State of A.P" through Public Prosecutor 2010(2) RCR 880(A.P) it was held that cheque could be filled up by anybody if it is signed by the account holder of the cheque. It was further held that body of the cheque need not necessarily be written by the accused and it can be in the handwriting of anybody else or typed on a machine, so long as the accused does not dispute the genuineness of the signature on the cheque.
14 From the aforesaid, it is amply clear that to fasten criminal liability upon the accused under Section 138 of the Act it is not necessary that body of the cheque must be filled by the accused. What is important is the signature on the cheque which in the present complaint is not disputed by the accused in his statement under Section 313 of Cr.P.C and also in his cross examination. Further, it is clear from the aforesaid judgment that body of the cheque need not be in the handwriting of the accused, it can be in the handwriting of anybody CC No. 2219/1 9 of 18 else or typed on a machine. So, in the present complaint even if the date on the cheques is put in rubber stamp, still it will be valid and will not amount to material alteration. Hence, this argument of the learned counsel for the accused is without any force.
15 Another argument raised by counsel for the accused is that loan was supposed to be repaid through ECS (Electronic Clearing System) and all the installments have been paid by the accused through ECS only and therefore cheques in question were given only as security cheque and not towards the discharge of any legal liability as has been alleged by the complainant. In retort, learned counsel for complainant has argued that cheques were installments cheques and accused has not proved that ECS was the only mode of payment of the loan.
16 I find force in the argument of learned counsel for the complainant as accused has failed to prove that ECS was the only mode of payment of installments towards the Loan amount. Accused has deposed in his examination that loan was to be repaid through ECS and not through any other mode but merely deposing that payment was to be made through ECS only would not advance the cause of the accused. Burden lies on the accused to prove this fact. Accused could have placed on record his own bank statement of account to substantiate his contention that monthly installments were paid through ECS. Therefore, in the absence of any cogent evidence that ECS was the only mode of payment, the argument of the learned counsel for the accused that cheques in question could not have been issued as installments towards the loan amount falls face down.
17 Another argument raised by learned counsel for accused is that the cheques in question were issued as security cheques and not as installments towards the loan. In CC No. 2219/1 10 of 18 support of his submission, Ld. Counsel for the accused has relied upon judgment of Delhi High Court "M/s Collage Culture and ors Vs. Apparel Export Promotion Council and Ors" Crl. Misc. No. 3011/2004. On the other hand counsel for the complainant has argued that those cheques were not security cheques rather they were post dated cheques taken at the time of the loan.
18 Accused has stated in his examination that cheques in question were given just for formalities and not towards repayment of the loan. On the other hand, complainant has stated in its evidence that cheques in question were post dated cheques issued towards the discharge of the loan. The contention that blank signed cheques were handed over as security inherently arouses dissatisfaction and reservation in the mind. The laudable commercial morality which the legislature seeks to usher in by introduction of Section 138 of NI Act will be frustrated and stultified if such a defence were meekly swallowed by any court.
The account holders are expected to deal with their cheques carefully, cautiously and reasonably. They are not expected to deal with their cheques playfully, casually and without diligence. Such a defence that the cheque was handed over as a blank signed and as security may still not be impermissible or impossible in a prosecution under Section 138 of NI Act. But certainly the burden rests squarely and heavily on the indictee who wants to attribute to himself such an improbable and artificial conduct to claim exculpation from liability. In the present complaint, accused has failed to lead any evidence in support of his stand that the cheques were security cheques and had it been so then accused could have written to the complainant for the return of the cheques one by one once he started paying his installments by any mode be it cash or ECS. Complainant AR has stated in his cross examination that accused last paid the installment in the month of July , 2007 and after that his EMI cheques CC No. 2219/1 11 of 18 got bounced. He further deposed that accused has paid 10 EMI's till date and accused has also stated in his cross examination that he has given 11 to 12 EMI's towards the loan. Accused has not placed on record any material to show that he has paid his EMI's after the month of July, 2007 so there is no ground to disbelieve the version of the complainant that cheques in question were given towards partial discharge of loan amount. As regards the judgment cited by Ld. Counsel for the accused, I hold that although the accused has stated in his examination that 6 blank cheques were given to the complainant before disbursal of the loan but he has not placed any material on record which could substantiate his contention therefore the judgment in Collage Culture (Supra) is not applicable to the facts of the present case.
19 Another limb of argument advanced by the learned counsel for the accused is that legal demand notice as envisaged by proviso to Section 138 of the Act has not been received by the accused which is sine qua non for prosecution of the complaint under S.138 of the Act. In retort, learned counsel for complainant averred that statutory notice dated 05.01.2008 was issued at the correct address of the accused by registered post and notice is deemed to be served by virtue of presumption under section 27 of General Clauses Act. 20 It is no longer res integra that service of legal demand notice calling upon the accused to make the payment in 15 days is indispensable for prosecution under Section 138 of the Act. Before giving my finding on the aforesaid issue, a reference to S.27 of the General Clauses Act will be useful. The section reads as under:
"S.27 Meaning of service by post Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either CC No. 2219/1 12 of 18 of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
21 The Supreme Court in "K. Bhaskaran Vs. Sankarn Vaidhyan Balan" (supra), wherein it has been held as under:
"(24) No. doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
22 In "V. Raja Kumari vs P. Subbarama Naidu & Anr" 2004 (8) SCC 774 , it was held:
In "Madhu v. Omega Pipes Ltd." [1994 (1) ALT (Crl.) 603 (Kerala)] the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice K.T. Thomas (as His Lordship was then) observed as follows:
"In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making payment. This affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by CC No. 2219/1 13 of 18 sending the notice to the drawer in his correct address, if receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice."
23 In "M/s Indo Automobiles v. M/s Jai Durga Enterprises and others" 2008 (4) RCR (Civil) it was held that once the notice demanding payment has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective.
24 In M/s Prakash Jewellers v. M/s A .K Jewellers 2002 (2) JCC 1171 , division bench of the Delhi High Court has specifically opined that the notice under section 138 of NI Act can be served either through registered post or UPC. It is also held that if notice is even dispatched by UPC with correct address of the drawer written on it, presumption of the service of the said notice arises. Relevant discussion is contained in para 10 of the judgment which is reproduced below:
10 "As it is section 138 does not prescribe any mode for giving of demand notice by the payee or holder of the cheque.But where such notice is served by post through registered post or postal certificate etc. with the correct address of the drawer written on it , it would raise a presumption of service unless the drawer proves that it was not received by him in fact and that he was not responsible for such nonservice. This is in tune with the principle embodied in section 27 of the General Clauses Act or even Rule 19 A of Order 11.Section 27 of General CC No. 2219/1 14 of 18 Clauses Act deals with the presumption of service of notice sent by post and provides that service of such notice shall be deemed to have been affected unless the contrary is proved. This principle is equally applicable to the service of notice for purpose of section 138 of the Negotiable Instruments Act also......."
25 So it is quite clear from S.27 of General Clauses Act and catena of Judgments that when a letter is properly addressed, prepaid and posted by registered post, service shall be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.
26 As can be seen from Ex.CW1/D and Ex.CW1/E1 and Ex.CW1/E2, the statutory notice was addressed to the residence of the accused at 4/2296, Lane 5 Goverdhan Bihari Colony, New Delhi 32 and also at A48, Sector 58, Noida 201301. Although accused has stated in his examination in chief that he has not received any legal demand notice from the complainant but he has admitted receiving the same in his statement under Section 313 of Cr.P.C. Moreover summons were issued to the accused on the address mentioned in the complaint which is same as on legal notice post which accused entered appearance. It is also pertinent to note that the accused has admitted in his cross examination that he received the court summons at the address mentioned in legal notice Ex CW1/D. Also the Apex Court in K.Bhaskaran (supra) has held that where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. So, the burden lies upon the accused to prove that he has not been served but he has failed to place on record any material to this effect. In the CC No. 2219/1 15 of 18 circumstances of the case and for the above reasons, I hold that statutory notice was sent to the correct address of the accused and therefore I hold that the notice is deemed to be served. The contention of learned counsel for the accused that notice was not served on the accused does not pass any muster.
27 Now comes the most important ingredient of Section 138 of N.I Act which is the issuance of the cheques for the discharge in whole or in part of a debt. At this juncture, it would be appropriate to refer to the provisions in Section 118 and 139 of N.I Act. Under Section 118, unless the contrary is proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus, in complaints under Section 138 the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttalbe. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The Supreme Court in "Hiten P. Dalal V. Bratindranath Banerjee", 2001 Crl. L.J 4647 while dealing with sections 138 and 139 of NI Act held that whenever a cheque was issued to the complainant for a specific amount, there is a presumption that it is towards discharge of legally enforceable debt. In the event of dispute, the burden is on the accused to prove that there is no subsisting liability as on the date of issuing of cheque and the proof must be sufficient to rebut the presumption and mere explanation is not sufficient. So, there is obligation on the part of the Court to raise the presumptions under Sections 118 and 139 of the NI Act in every case where the factual basis for raising of the presumption had been established.
CC No. 2219/1 16 of 18
28 Recently the Apex Court in Rangappa v. Mohan AIR 2010 SC 1898 has held that
the presumption mandated by S.139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
29 So it is quite clear from the above that there is an initial presumption in favour of the complainant that the cheque has been received for the discharge of debt or liability which needs to be rebutted by the accused. In the present complaint, accused has cross examined the complainant witness but nothing material could be elicited which can advance the cause of the accused. In his cross examination, accused has admitted availing loan of Rs 2,50,000/ from the complainant and also admitted his signature on the cheques in question. He has also admitted that his monthly installment was Rs 11,390/ and he has paid only 11 to 12 installments till December, 2007. Complainant AR has stated in his evidence that accused defaulted in paying his installments after July, 2007. Accused has nowhere stated nor proved that he paid his monthly installments in time after July, 2007. Although he has stated that the cheques were issued blank and not towards the discharge of any legal liability but merely deposing the same, without placing on record any material will not be sufficient to rebut the presumptions, therefore in these circumstances, I hold that accused has failed to discharge the onus that cheques in question were not issued for a debt or liability hence the presumption that has arisen in favour of the complainant under section 139 of N.I Act stands unrebutted.
30 The complainant has proved basic facts of borrowing of loan and issuing of Ex CW1/B1, Ex.CW1/B2 and Ex.CW1/B3 cheques by the accused. Once the basic facts stand CC No. 2219/1 17 of 18 proved by the complainant, he discharges the initial burden. Then , it is for the accused to rebut the presumptions that are drawn in favour of the complainant under Sections 118 and 139 of the N.I Act. He can make out his case from material brought on record by the complainant. Though complainant witness was cross examined by the accused, nothing material was elicited to rebut the presumptions under Sections 118 and 139 of N.I Act. It was suggested to CW1 that complainant obtained blank cheques as security for the loan availed by the accused. The said suggestion was denied by CW1. DW1 accused has admitted his signature on the cheques in question.
31 Thus the complainant is able to establish that the accused borrowed loan and issued Ex CW1/B1, Ex.CW1/B2 and Ex.CW1/B3 cheques amounting to Rs. 11,390/ each/ dated 20.12.2007. On presentation of the cheque, it came to be dishonoured with the remarks "funds insufficient" vide return memo Ex CW1/C1, Ex.CW1/C2 and Ex.CW1/C3 and thereupon the complainant issued Ex.CW1/D notice calling upon him to make good the amount covered under the cheque in question. The accused received the notice but failed to give any reply. The complainant presented the complaint. All the essential ingredients of Section 138 N.I Act have been made out by the complainant. Therefore, the accused stands convicted for the offence under Section 138 of N.I Act.
ANNOUNCED IN THE OPEN (NAVJEET BUDHIRAJA)
COURT ON 15.07.2011 METROPOLITAN MAGISTRATE
SPECIAL COURT 06,
DWARKA COURTS, NEW DELHI.
CC No. 2219/1 18 of 18