Delhi District Court
M/S.Vintage Credit And Leasing Pvt.Ltd vs Rajesh Kumar on 14 February, 2024
IN THE COURT OF SH AZAD SEHRAWAT,
METROPOLITAN MAGISTRATE,SOUTH-WEST,
DWARKA, DELHI
In Re:
CNR No. DLSW02-047069-2019
CC No. 33708/2019
M/s Vintage Credit & Leasing Pvt. Ltd.
Office at 7/30, West Patel Nagar,
New Delhi-110008
Through its Manager/AR Sh. Sanni Gupta
....... Complainant
Versus
Rajesh Kumar s/o Sh Braham Pal
C/o H. No. 102, Block H, Zeta-1,
AVJ Heights Society ,
Near Jesus & Marry School,
Greater Noida, UP-201308
Sh. Rajesh Kumar s/o Braham Pal
C/o Elentec India Pvt. Ltd.
Designation :Engineer
EOU unit-57/1&2. Ecotech-1, Extn.-1,
Kasna, Greater Noida, UP-201308 .......... Accused
(1) Offence complained of or proved : 138 N.I. Act
(2) Plea of accused : Pleaded not
guilty
(3) Date of institution of case : 09.09.2019
(4) Date of conclusion of arguments : 10.01.2024
(5) Date of Final Order : 14.02.2024
Digitally signed by
AZAD AZAD SEHRAWAT
SEHRAWAT Date: 2024.02.14
16:59:48 +0530
CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 1 of 18
(6) Final Order : Convicted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant company alleges that it is incorporated under the Indian Companies Act, 1956 and that vide Resolution dated 01.01.2019, Mr. Sanni Gupta has been authorized by the complainant company to file the present complaint under Section 138 of the NI Act against the accused on behalf of the complainant company. It is alleged that one Sh. Rahul Jain approached the complainant company for taking a loan of Rs.
2,25,000/- and that the accused stood guarantor for Sh. Rahul Jain in the said loan. It is further alleged that the complainant company sanctioned the said loan to Sh. Rahul Jain vide loan agreement dated 12.04.2017 and it was agreed that the same was to be repaid in 24 equal monthly installments of Rs.13,106/- each. It is further alleged that the principal borrower and the accused failed to repay the loan amount on time. It is further alleged that in discharge of his liability, the accused issued one cheque bearing No. 031875 dated 03.07.2019 amounting to Rs. 1,95,000/- drawn on Central Bank of India, Greater Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:00:12 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 2 of 18 Noida, UP with an assurance of its encashment. The complainant company thereafter presented the said cheque in its account, however, on presentation it was returned/dishonoured vide return memo dated 06.07.2019 due to the reason "Funds insufficient". Thereafter, it was alleged that a legal demand notice dated 26.07.2019 demanding payment of the aforesaid cheque was sent to the accused through speed post dated 29.07.2019 and that despite service of the aforesaid legal demand notice, no money was repaid by the accused. Thereafter, the complainant has filed the present complaint case with the submission that the accused be summoned, tried and punished according to law.
3. In pre-summoning evidence, Sh. Sanni Gupta, AR of the complainant company examined himself on affidavit Ex. CW-1/1 and filed certificate of incorporation as Ex.CW-1/A. He reiterated the contents of the complaint and placed on record copy of board resolution authorizing him to appear as AR for the complainant company as Ex.CW1/B, original cheque in question bearing no. 031875 dated 03.07.2019 as Ex. CW-1/C, bank return memo as Ex. CW-1/D, legal demand notice dated 26.07.2019 as Ex. CW- 1/E, postal receipts as Ex. CW-1/F (colly) and tracking report is Ex. CW-1/G (colly).
4. Upon appreciation of the pre-summoning evidence, accused was summoned for an offence punishable under Section Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.02.14 17:00:27 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 3 of 18 138 of the NI Act and notice under Section 251 Cr.P.C. for this offence was framed upon the accused on 22.10.2022 to which the accused pleaded not guilty and claimed trial. He stated that he had not availed any loan from the complainant company.
However, he further stated that he stood guarantor for the loan of Rs.2,25,000/- availed by his friend namely Rahul Jain from the complainant company. Accused admitted his signature on the cheque in question. However, he denied filing in the remaining details in the cheque in question. Accused also denied receipt of the legal demand notice by him. However, he stated that the address mentioned in the legal demand notice is his correct address. He further stated that he gave the cheque in question as blank signed security cheque at the time of availing the said loan by the principal borrower Sh. Rahul Jain. He further stated that he did not know how much amount is repaid by the principal borrower Sh. Rahul Jain to the complainant company. He further stated that as per his knowledge, the complainant company has not filed any case against the principal borrower Sh. Rahul Jain. He further stated that the complainant company has misused the blank signed security cheque in question to institute a false complaint case against him. Thereafter, the matter was listed for complainant evidence.
5. Sh. Sanni Gupta, the AR of the complainant company examined himself as CW-1 and he was cross-examined by ld. counsel for the accused. No other witness was produced by the Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:00:39 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 4 of 18 complainant and he closed his evidence by giving a separate statement to this effect on 05.07.2023.
6. Thereafter, statement of the accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused separately to which the accused reiterated the stand taken by him in answer to notice framed under Section 251 Cr.P.C. In his statement under Section 313 Cr.P.C, the accused stated that he stood guarantor for the loan in question and that he had issued the cheque in question as security to the complainant company. Accused also admitted his signature on the cheque in question. However, he denied filling in all the remaining details on the cheque in question. He also denied receipt of the legal demand notice by him. However, he admitted that the address mentioned on the legal demand notice is his correct address. He further stated that he had not availed any loan from the complainant company and that he stood guarantor for the loan of Rs.2,25,000/- availed by his friend namely Rahul Jain from the complainant company. He further stated that he gave the cheque in question as blank signed security cheque at the time of availing of the loan in question by the principal borrower Sh. Rahul Jain. He further stated that he did not know how much amount is repaid by said Sh. Rahul Jain to the complainant company and that as per his knowledge, the complainant company has not filed any case against the principal borrower Sh. Rahul Jain. He also stated that the complainant company has Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:00:46 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 5 of 18 misused the blank signed security cheque in question to institute a false complaint case against him. The accused preferred to lead defence evidence and the matter was listed for defence evidence. However, no defence evidence was led by the accused and his defence evidence was closed vide order dated 11.10.2023 and the matter was listed for final arguments.
7. It was argued by Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the NI Act read with Section 139 of the NI Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. He argued that the accused has admitted his signatures on the cheque in question in answer to notice framed under Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C. He also argued that the accused has admitted that the address mentioned on the legal demand notice is his correct address in answer to notice framed under Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C. He further argued that the accused did not bring on record any evidence to show that the cheque in question was given as a blank signed security cheque at the time of disbursal of the present loan and that the same has been misused by the complainant company in the present matter. He also argued that the accused stood guarantor for the principal borrower in the present loan and that this fact has also been admitted by the accused in his answer to notice framed under Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.02.14 17:00:54 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 6 of 18 Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C. He further argued that the accused does not have the right to silence and that the accused must disprove the case of the complainant by leading cogent positive evidence. He further argued that the loan statement of account Ex. CW1/I has not been disputed by the accused and according to the same an outstanding liability of Rs. 1,95,000/- is clearly pending against the principal borrower. He further argued that the accused has not produced any evidence to show that he is not liable to pay the amount mentioned on the cheque in question and that the documentary evidence, i.e. the loan statement of account Ex.
CW1/I will override any oral testimony. He also argued that there were material inconsistencies in the defence version of the accused. It was further argued that the accused failed to raise a probable defence to disprove the case of the complainant and to rebut the presumption raised under Section 139 of the NI Act, and therefore, the accused be convicted for the offence under Section 138 of the NI Act.
8. Per contra, Ld. Counsel for the accused reiterated the version of the accused in answer to notice framed under Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C. He argued that the accused stood guarantor for one Sh. Rahul Jain, who is the principal borrower in the loan in question in the present matter, and that the principal borrower has already paid some installments out of total 24 installments of around Rs.
Digitally signed
by AZAD
AZAD SEHRAWAT
SEHRAWAT Date: 2024.02.14
17:01:02 +0530
CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 7 of 18 13,100/- each before the cheque in question was presented in the bank. He further argued that the complainant company has failed to show as to how the accused is liable to pay the amount of Rs. 1,95,000/- mentioned in the cheque in question and in the legal demand notice. He further argued that the complainant has not come to this court with clean hands, and therefore, the accused is entitled to an order of acquittal in the present matter. He also argued that AR of the complainant company has stated in his cross-examination as CW1 that he does not know the exact date when the cheque in question was received by the complainant company. It was also argued that evidence of the complainant suffered from material lapses and inconsistencies and was not sufficient to establish the case against the accused. He submitted that the complainant has failed to prove his case beyond reasonable doubt and that the accused is entitled to be acquitted of the offence under section 138 of the NI Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let the relevant position of law be discussed first:
For the offence under Section 138 of the NI Act to be made out against the accused, the complainant must prove the Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:01:12 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 8 of 18 following points:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The fact that the accused issued the cheque in question has not been disputed by the accused at any stage of the trial. Moreover, this fact has also been admitted by accused in the notice framed under Section 251 Cr.P.C as well as in his statement recorded under Section 313 Cr.P.C.
12. The NI Act raises two presumptions in favour of the holder of the cheque i.e. the complainant company in the present case; firstly, in regard to the negotiable instrument being drawn or made for consideration as contained in Section 118 (a) and secondly, of the nature referred to in Section 139, a presumption that the holder of the cheque received the same in discharge, in whole or in part, of any debt or other liability.
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, Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:01:20 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 9 of 18 indorsed, 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 isproved, 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".
13. For the offence under Section 138 of the NI Act, the presumptions under Sections 118(a) and Section 139 of the NI Act have to be compulsory raised as soon as execution of the cheque is admitted by the accused or proved by the complainant and thereafter the burden is shifted upon the accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or other liability. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Section 118 and Section 139 of the NI Act are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16]. In this case, the Apex Court had held:
"........ Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn,.... it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:01:29 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 10 of 18 prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'
14. In the present case, the accused has admitted his signatures on the cheque in question, in answer to notice framed under Section 251 Cr.P.C. and in his statement recorded under Section 313 Cr.P.C. Reference can be made to Judgment of the Apex Court in Rangappa Vs. Mohan, AIR 2010 SC 1898, wherein it was held that:
"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."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."Digitally signed by AZAD SEHRAWAT
AZAD Date: SEHRAWAT 2024.02.14 17:01:38 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 11 of 18
15. As per the scheme of the Act, on proof of the cheque being signed by the accused, a presumption arises as to the cheque having been issued in discharge of a legal liability, and the burden lies upon the accused to rebut the same. This clearly is an example of the rule of 'reverse onus' in action, where it is incumbent upon the accused to lead what can be called 'negative evidence'. This phrase refers to evidence of a character not to prove a fact affirmatively, but to lead evidence to show non- existence of a liability. Keeping in view that this is a departure from the cardinal rule of criminal jurisprudence of 'presumption of innocence' in favour of the accused, and also keeping in mind that negative evidence is not easy to be led by its very nature, it is now fairly well settled and no more res integra that the accused can displace this presumption on a scale of preponderance of probabilities. The lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person ought, under the circumstances of the case, to act on the supposition that it does not exist. Simply put, the accused has to make out a fairly plausible hypothesis. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and the Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:01:47 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 12 of 18 evidence adduced by the complainant during trial. Reliance can also be place on the judgment of the Hon'ble High Court of Delhi in S. S. Chouhan Vs. State & Anr. [CRL. L. P. No. 164/2012], wherein it was held:
"22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
23. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
In light of the legal position discussed above, let us carry out a scrutiny of the evidence led at the trial.
16. The complainant company led its own evidence by way of affidavit testifying that the cheque was issued in discharge of the loan liability. The cheque in question, dishonour memo of the cheque and legal demand notice were placed on record.
17. It is the defence of the accused that he had stood guarantor for the loan in question which was availed by one Sh. Rahul Jain and that he had issued the cheque in question as a blank signed security cheque to the complainant company at the time of availing the abovesaid loan. He further stated in his notice framed under Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C that he is not aware as to how much amount has already been repaid by the principal borrower Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.02.14 17:01:54 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 13 of 18 towards the loan in question. He further stated that he is not aware if any legal action has been taken by the complainant company against the principal borrower in respect of the loan in question in the present matter.
18. It is trite law that offence under Section 138 of the Act can be fastened on an accused only if he commits a default in repayment of the dishonoured cheque which was issued in discharge of a legally recoverable debt. This position of law was also endorsed by the Apex Court in Sasseriyil Joseph Vs. Devassia, SLP (Crl.)1785/2001, DoD 10.09.2001.
19. In the present case, the complainant company has placed on record the original loan agreement Ex. CW1/H in which the accused is shown as a guarantor towards the loan taken by the principal borrower Sh. Rahul Jain. Moreover, the accused has admitted issuing the cheque in question to the complainant company as a guarantor for the principal borrower Sh. Rahul Jain in his notice framed under Section 251 Cr.P.C and in his statement recorded under Section 313 Cr.P.C. He also stated that he does not know how much amount has been repaid by the principal borrower. Moreover, the complainant company has also placed on record the loan statement of account as Ex. CW1/I which clearly shows the outstanding liability of the principal borrower of Rs. 1,95,000/- towards the complainant company. This document has not been disputed by the accused at any stage Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:02:01 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 14 of 18 of the trial in the present matter. Perusal of the record shows that the only defence taken by the accused is that he has not taken any loan from the complainant company and that he merely stood guarantor for the loan in question. It is a well-settled proposition of law that the liability of a guarantor is co-extensive with that of the principal borrower, unless the contract provides otherwise. Reference in this regard can be placed upon Section 128 of the Indian Contract Act, 1872, which reads as follows:
"Surety's liability - The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract."
Further, in regard to the defence taken by the accused that the cheque in question was given as security to the complainant bank, this court is of the opinion that the security cheque per se not a defence.
The Hon'ble High Court of Delhi in the case of Suresh Chandra Goyal Vs. Amit Singhal Crl. L.P, 706/2014 has observed that:
"Section 138 of NI Act does not distinguish between a cheque issued by a debtor in discharge of an existing debt or other liability, or a cheque issued as security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour."
Also, Hon'ble High Court of Bombay in Sai Auto Agencies Vs. Sheikh Yusuf Sheikh Umar, 2011 (1) Crimes 180 has noted that:
"Even if blank cheque has been given towards liability or even as security, when the liability is assessed and quantified, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Negotiable Instruments Act."Digitally signed by AZAD SEHRAWAT
AZAD Date: SEHRAWAT 2024.02.14 17:02:08 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 15 of 18 Thus, the defence that the cheque in question was given as a security cheque will not by itself help the accused to rebut the presumption raised under Section 139 NI Act, since, the Negotiable Instruments Act does not distinguish between a security cheque and other cheques.
As discussed above, the accused has failed to show any repayment of loan to the complainant company or to dispute the existence of a legally enforceable liability to the tune of the amount mentioned on the cheque in question on the date mentioned on the same. In view of the above dicta, it is clear that the cheque in question is for the crystallized and established liability, towards repayment of loan, existing on the date mentioned on the cheque in question, and the dishonor of the cheque would invite action under Section 138 NI Act.
20. The accused has also denied the receipt of legal demand notice. However, it is worth noting that the accused has admitted in his statement under Section 313 Cr.P.C that the address mentioned on the legal demand notice is his correct address. Moreover, the accused has not brought on record any evidence to show that he was not residing at the above address at the time of service of the legal demand notice. The above shows that the legal demand notice was sent at the correct address of the accused. Once the notice is proved to be sent by post to the correct address of the accused, then the presumption u/s 27 of Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:02:16 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 16 of 18 General Clauses Act, 1897 arises and it shall be presumed, unless proved contrary, that the legal demand notice sent to the address of the accused was served upon him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same, the legal demand notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"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."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
Moreover, as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, if the accused did not receive the legal demand notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance. Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.02.14 17:02:24 +0530 CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 17 of 18
21. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complainant disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo, loan agreement and the legal demand notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that the complainant has successfully proved his case beyond reasonable doubt.
22. Accordingly, the accused Sh. Rajesh Kumar s/o Sh. Braham Pal is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
23. Let the convict be heard on quantum of sentence.
24. Copy of Judgment be supplied to the convict free of cost.
Digitally signed
by AZAD
AZAD SEHRAWAT
SEHRAWAT Date: 2024.02.14
17:02:32 +0530
ANNOUNCED IN THE (AZAD SEHRAWAT)
OPEN COURT. METROPOLITAN MAGISTRATE
TODAY i.e 14.02.2024 DWARKA COURTS/ DELHI
CC No.33708/2019 Vintage Credit and Leasing Pvt. Ltd. vs. Rajesh Kumar Page no. 18 of 18