Delhi District Court
Kaushalya Sharma vs Gobind Narain Sharma & Anr. on 3 March, 2012
CC No. 1277/A/2011
Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
IN THE COURT OF VIPLAV DABAS
METROPOLITAN MAGISTRATE
DISTRICT-NORTH, TIS HAZARI COURTS, DELHI
Smt. Kaushalya Sharma Date of institution of case : 23.09.2000
Vs Date of decision of case : 03.03.2012
Sh. Gobind Narain
Unique ID No.02401R0161032011
CC.No. 1277/A/2011
P.S.- Sarai Rohila
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 19.09.2000
2. Name & address of the complainant : Kaushlya Sharma W/o Late Sh Kishan Sharma R/o 9784, Ahata Thakur Dass, Sarai Rohilla, New Delhi
3. Name & address of the accused : Sh. Gobind Narain Sharma S/o Sh Bore Lal R/o A-299, Hasthal Village, Uttam Nagar, New Delhi.
4. Offence complained of : U/s.138 of Negotiable Instruments Act
5. Plea of accused & examination if any : Pleaded not guilty.
Examination U/s. 313 and 315 Cr.P.C.
Defence evidence was led
6. Final order : Convicted
7. Date of such order : 03.03.2012 1/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case under section 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant Smt. Kaushalya Sharma against the accused Sh. Gobind Narain.
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
The accused and his wife promised the complainant to get a Maruthi Van financed from a financier and the complainant believing the accused's representations issued to the accused a cheque bearing No. 895622 dated 23.06.2000 drawn on State Bank Of India, Karol Bagh, New Delhi for an amount of Rs 62,818/- in the name of M/s Allied Motors Ltd, Cannaught Place, New Delhi towards purchase of Maruti Van. It is further stated that remaining amount was to be financed, but the accused purchased the Maruti Van in his name with the said payment without disclosing the same to complainant and also took another bearer cheque for Rs 15,000/- for installation of accessories.
It is further stated that when the complainant asked for papers of the vehicle the accused told her that he had taken the Maruti Van in his own name. So, the complainant asked the accused to return the aforesaid amount. Thereafter, the accused gave her a cheque bearing No 916654 dated 20.08.2000 for an amount of Rs 65,000/- drawn on Global Trust Bank Ltd., South Ext., New Delhi. It is stated that when this cheque was presented for encashment on 24.08.2000, the same was dishonored with the remarks " Insufficient funds" vide 2/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
return memo dated 25.08.2000. The complainant issued a legal notice of demand dated 02.09.2000 to the accused through his lawyer which was sent by Registered post & UPC on 02.09.2000 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant filed the instant complaint for prosecution of the accused under section 138 of the Negotiable Instruments Act, 1881.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused vide order dated 23.07.2008 for the offence punishable under section 138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice under section 251 of the Code of Criminal Procedure, 1973 was served upon the accused on 07.06.2010 to which accused pleaded not guilty and claimed trial.
4. Accused was permitted to cross examine the complainant. Smt. Kaushalya Sharma, complainant got herself examined as CW-1 by tendering the post-summoning affidavit EX.CW-1/1 and relied upon the documents i.e cheque, cheque returning memo, legal demand notice dated 02.09.2000, registered post, UPC which were exhibited as CW-1/A to CW-1/H respectively. Sh. Smt. Kaushalya Sharma, complainant was cross examined by learned counsel for the accused. Thereafter, the complainant evidence was closed on statement of Ld. Counsel for complainant.
5. The statement of accused was recorded under section 313/281 of the Code of Criminal Procedure, 1973 in which all the incriminating evidence alongwith exhibited documents were put to the accused Sh. Gobind Narayan. It 3/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
is stated by the accused that the cheque in question bears his signature and that he does not know about the dishonor of the said cheque. Accused further stated that the complainant has filed a false complaint and the complainant has deposed upon the instructions of someone else.
6. An opportunity for leading the Defence evidence was given to accused. The accused got himself examined under section 315 of the Code of Criminal Procedure, 1973 after the application under section 315 Code of Criminal Procedure, 1973 was allowed by this court on 09.09.2011. Accused was examined, cross examined and discharged. Sh. Vijay Gutpa was called by the accused as defence witness who was also examined and discharged. Thereafter, the defence evidence was closed on the statement of Ld. Counsel for accused.
7. The court heard the arguments advanced by the learned counsels for both the parties at length and perused the entire record of the case file as well as evidence on record.
8 It would be appropriate to quote the Hon'ble Supreme Court in RangappaVs. S. Mohan, (2010) 11 SCC 441:
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act."
9. In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of. The main ingredient of Section 138 of the Negotiable Instruments Act, 1881 are as follows:
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i. The accused issued cheque on an account maintained by him with a bank.
ii. The said cheque has been issued in discharge of any legal debt or other liability.
iii. The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv. When the aforesaid cheques were presented for
encashment, the same were returned
unpaid/dishonoured.
v. The payee of the cheque issued a legal notice of demand
within 30 days from the receipt of information by him from the bank regarding the return of the cheque. vi. The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s. 138 of the Negotiable Instruments Act, 1881.
Offence under section 138 of Negotiable Instruments Act, 1881 is a technical offence, which involves a reverse onus clause and the reverse onus can be rebutted by raising a mere preponderance of probability.5/20
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10. Discussion on Legal provisions:
There are some mandatory presumptions of law arising in favour of the complainant. The same may be summarized as under:
10.1. Section-118 of Negotiable Instruments Act reads as under:
"118. 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
Presumptions are:
1. Cheque was drawn for consideration;
2. Cheque was transferred for consideration;
3. Cheque was accepted for consideration.
10.2. Section-139 of Negotiable Instruments Act reads as under:
"139. 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."
Presumptions are:
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1. Holder of the cheque has lawfully received the cheque, meaning thereby that the holder was in lawful possession of the cheque;
2. The cheque was given in discharge of any debt or liability;
3. Legally enforceable debt or liability was in existence at the time of issuance of the cheque;
4. The cheque was of the nature as described in section-138;
5. The cheque was drawn by the person who was maintaining the account pertaining to the cheque;
6. Amount of money mentioned in the cheque was intended to be given;
10.3. Section-146 of Negotiable Instruments Act reads as under:
"146. Bank's slip prima facie evidence of certain facts- The court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
Presumptions are:
1. The cheque has been dishonoured;
2. The cheque has been so dishonoured for the reason mentioned in the memo.
10.4. Section-27, General Clauses Act reads as under:
"27. Meaning of service by post -7/20
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Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying 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."
Presumptions are:
i. Letter has been served upon the accused;
ii. The same is served within the normal reasonable
time;
iii. The content of the letter was within the knowledge of the accused. (see a three judges bench decision of Hon'ble Supreme Court if India in Harcharan Singh vs Shiv Rani & Ors. AIR 1981 SC 1248).
In this respect, a three judges bench of Hon'ble Supreme Court in C.C. Alavi Haji v. PalapettyMuhammed and Another (2007) 6 SCC 555 has held that:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 the 8/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot 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 the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference."
On mere explanation, denial and minor inconsistencies:
11. Without any doubt, in a criminal case, the prosecution has to stand on its own lags. No blemishes in the story of the accused will give a right to the 9/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
complainant to claim that he has establish his case. Even accused can always rely upon the material and circumstances brought on record by the complainant. However, there must be something more than a bare denial or a mere explanation.
11.1. It is a settled law that a mere denial of passing off consideration is not sufficient. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 (Para. 12) it has been held that:
"Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence.10/20
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Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist."
11.2. Further, a mere explanation given by the accused is also not sufficient. In case titled V S YadavvsReenaCrL.A.No. 1136/2010 decided on 21.09.2010, Hon'ble High Court of Delhi has observed that:
"3. The appellant had taken a stand that no reply to the notice of legal demand was sent by the respondent, instead, envelopes with blank sheets in it were sent by the respondent. In her examination under Section 281 Cr. P.C. she did not deny issuance of cheques, but, took a defence that cheque were issued as security for seeking loan but no loan was advanced and the cheques were therefore without consideration. The learned MM observed that conviction under Section 138 of N.I. Act cannot be made acting on evidence of complainant and considering the presumption under Section 139 of N.I. Act. The complainant has to prove beyond reasonable doubt the debt or liability of the accused. Learned MM observed that complainant had not specified the date of giving loan and a reasonable man would remember the date of giving substantial sum of money as loan to other and this blissful forgetness of the date by the complainant raised doubt about the liability of the accused, more so, in view of the stand taken by the accused that the cheques were issued as security and the same were never returned.
5. It must be borne in mind that the statement of accused under Section 281 Cr.P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating 11/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence.
7.....The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under Section 138 of N.I. Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write 12/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
11.3. In RangappaVs. S.Mohan (Supra), the case of the accused was that of a lost cheque. However initially, the High Court dealing with matter had held that:
'6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ...' The judgment of conviction upon the above basis recorded by the Hon'ble High Court was finally upheld by the Hon'ble Supreme Court in Rangappa (supra). It was further held as under that:13/20
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"Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant- accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction- related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. "
On requirement to establish the fact within special knowledge:
11.4 In Rajesh Agarwal vs State, Hon'ble High Court of Delhi has observed that:
"9. An argument is raised that the accused, under Article 21 of Constitution of India, has a right of silence in a criminal trial and therefore he cannot be forced to disclose his defence. This 14/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
argument is misconceived in view of Section 106 of Indian Evidence Act.
Since an offence under section 138 of Negotiable Instrument Act is technical in nature and defence which an accused can take are inbuilt, like the cheque was given without consideration, the accused was not Director at that time, accused was a sleeping partner or a sleeping Director, cheque was given as a security etc. etc., the onus of proving these defences is on the accused alone, in view of section 106 of Evidence Act.
Since the mandate of Legislature is trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of section 145(1) of N.I. Act and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. One must not forget that the offence under section 138 of N.I. Act is not of the kind of offence as in IPC where the State prosecutes a person for offence against the society. The offence under section 138 of N.I. Act is an offence in the personal nature of the complainant and it is an offence made under N.I. Act so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act, he alone has to take the plea of defence and burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused. I, therefore, consider that the proper procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence& his plea should be recorded. Where an accused takes no defence and simply says "I am innocent", there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the 15/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness(es) and then only the court shall recall the witness by recording reasons thereto."
12. The court will now deal with the each ingredient of the Section 138 of the Negotiable Instrument Act, 1881 to see whether the case against the accused has been proved or not.
A) Limitation Aspect:- The cheque dated 20.08.2000, EX.CW1/A, was returned unpaid on presentation for the reason Funds Insufficient on 25.08.2000 implying that the cheque was presented within six months of date of issuance mentioned on cheque. Legal notice dated 02.09.2000, EX.CW-1/C was dispatched on 02.09.2000 which is well within 30 days of date of return of cheque and same is deemed to be served upon the accused on 04.09.2000. Complaint was filed on 23.09.2000 which is within one month of 19.09.2000, the date of arising of cause of action. So, the complaint is well within limitation and the same is not disputed by accused.
B) Dishonor Aspect:- Dishonour of cheque for insufficient funds is deemed to be proved by virtue of presumption u/s 146 Negotiable Instrument Act as the accused did not challenge the cheque return memo Ex.CW-1/B, even by putting a suggestion to this effect to the complainant.
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C) Issuance of Cheque Aspect:- The accused admitted the issuance of present cheque bearing his signatures in his statement recorded u/s 313 of Criminal Procedure Code, 1973 and further during his defence evidence. It is settled law that facts admitted need not be proved. As the accused has admitted the issuance of cheque so, the same need not be proved.
D) Legal Notice Aspect:- As per para 5 of the affidavit EX.CW-1/1, the complainant deposed that the accused was served with legal notice and the accused did not repay the amount despite service of legal notice. Complainant affirmed during his cross examination that legal notice was duly sent to the accused. The accused admitted that legal notice was duly served upon his wife who was initially arrayed as accused no.2 but was dropped later. The accused did not dispute the address mentioned on the UPC, postal receipts and returned registered post envelope exhibited as EX.CW-1/E, EX.CW-1/D and EXCW-1/G respectively. It establishes that the legal notice was dispatched at the correct address of the accused. Perusal of endorsement made by postal authorities on returned envelope reveals that the envelope was returned unclaimed after intimation was delivered to the accused. The postal endorsement has not been challenged by the accused which implies that the accused admitted the said report to be correct. It means that the accused deliberately avoided the legal notice and contents of which were known to him as another copy of same admittedly was served upon his wife at the same address. It amounts to intentional refusal by the accused to accept the service of legal notice. So, the presumption of due service u/s 27 of General Clause Act is bound to arise which the accused did not rebut. Thus, it stands proved that legal notice was duly served upon the accused.
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E) Liability Aspect:- Complainant has primarily relied upon the mandatory presumption of law in respect of legal liability. The signatures on the cheque, its issuance and dishonor being admitted as above, presumption under section 118 and 139 of the Negotiable Instruments Act, 1881 has to arise. So, it must be presumed that the liability as alleged was existing at the time when cheque was given.
It is a settled law that accused is entitled to discharge the onus placed on him even on the basis of materials brought on record by the complainant. It is not obligatory on the accused to separately adduce evidence or to enter into witness box if he can successfully gather the material from the evidence of complainant which would sufficiently disprove the presumptive facts, particularly in relation to the pre-existence of legal liability or the debt for the discharge of which cheque was given. In the present case, the accused has relied on the material brought by the complainant as well as has led defence evidence. Now it has to be seen whether the accused has been able to rebut the aforesaid presumption or not E.1 Accused took the defence that liability in respect of cheque in question was discharged by him in the form of renovation work worth Rs 1,96,000/- done at the house of the complainant after the complainant declined the offer of the accused to pay the cheque amount in cash. Accused further took the defence that the complainant did not return his cheque after completion of renovation work as the cheque was misplaced. The complainant firmly denied the aforesaid defence which was put to her by way of suggestions. Complainant continuously and firmly clarified that no construction work was ever done by the accused. But strangely, the accused did not say anything about the aforesaid defence during recording of statement u/s 313/281 Code of Criminal Procedure. Accused 18/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
deposed in his defence u/s 315 Code of Criminal Procedure and admitted the issuance of cheque in question after duly signing and filling it.
Accused testified in his evidence that total cost of job work done by him was Rs 2 lacs while as per the suggestion put to the complainant the cost of work done by him was Rs 1,19,600/-. It is a major contradiction as the difference between the aforesaid amount is very huge which indicates that the accused is making vague statements regarding the amount and leads to the conclusion that no such work was ever done by the accused as in normal circumstances a person who had done renovation work worth more than Rs 1 lac is expected to remember the exact amount or near approximate amount due in respect of work done if any.
E.2 Defence witness Sh. Vijay Gupta was also brought by the accused but name/reference of this witness was neither put to complainant during her cross examination nor was it disclosed of by accused in the statement of accused recorded u/s 313/281 Code of Criminal Procedure. It means that introduction of this witness is an afterthought and so its testimony can not be relied. Even otherwise, this witness testified that complainant's house was double storyed while the accused deposed that complainant's house is single storyed. This contradiction falsifies the entire defence version as the persons doing construction/ renovation work must know about basic structure of the building. Moreover, the accused did not place on record any documents/ bills which are ordinarily raised while doing such work. Furthermore, accused did not bring anything on record to show the steps taken by him till date to recover the amount incurred in construction work over and above the cheque amount or to get back his cheque which has been allegedly retained by complainant. It implies that no 19/20 CC No. 1277/A/2011 Kaushalya Sharma Vs Gobind Narain Sharma & Anr.
such steps have been taken till date which in turn falsifies the entire defence version as no reasonable and prudent man would have kept silent in such circumstances.
In view of aforesaid discussion, it stands proved that cheque was issued by accused to the complainant towards discharge of existing liability.
13. So, the complaint discloses the prima facie existence of legally enforceable debt or liability as the complainant has maintained throughout the case that the cheque in question was issued by the accused in discharge of his liability which the accused failed to rebut.
14. In view of the aforesaid discussion as accused has failed to rebut the mandatory presumption of law arising in favour of complainant, this court is of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instrument Act, 1881 have been duly proved on record. Accordingly accused Gobind Narain stands convicted of the offence under section 138 Negotiable Instrument Act, 1881.
15. Let the convict be heard on the point of sentence.
Announced in the open court ( VIPLAV DABAS )
today i.e. 03.03.2012 Metropolitan Magistrate
North/Delhi/03.03.2012
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