Delhi District Court
Yogender Singh vs Ashok Kumar on 24 March, 2023
IN THE COURT OF MS NEETI SURI MISHRA
ACMM (NORTH): ROHINI COURTS:NEW DELHI
Ct. Case No.4157/2016
Yogender Singh vs Ashok Kumar
Unique ID no. of the case : DLNT-02-002061-2013
Name of complainant : Yogender Singh
Name and address of accused : Ashok Kumar s/o Sh. Chander Bhan
r/o Naiwala Mohalla, village Khera
Khurd, Delhi-110082
Date of Institution of case: 25.03.2013
Plea of accused : Pleaded not guilty
Date of reserving the order: 17.03.2023
Date of order : 24.03.2023
Final order : Convicted u/s 138 Negotiable
Instruments Act, 1881
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 1/18
JUDGMENT
1. This judgment shall put to rest the dispute between complainant Yogender Singh and accused Ashok Kumar regarding dishonour of a cheque, the offence being punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Complainant's case as set out in the complaint is that the complainant and accused were on friendly terms with each other. The accused approached the complainant seeking financial help as the accused claimed to have suffered huge losses in share trading and considering the amiability in their relationship, complainant extended him financial help to the tune of Rs.5,00,000/- in the month of August, 2011.
3. Later on, the accused in discharge of his liability issued a cheque bearing no. 120337 dated 09/01/2012 for the said amount which was drawn on Indian Overseas Bank, Maurya Enclave Branch, 29, Pacific Mall, K.P. Block, Maurya Enclave, Pitampura West, Delhi. That on the request of accused, the presentation of cheque was postponed due to which the cheque was returned for being presented beyond the prescribed period of its presentation for encashment. On account of such circumstance, the complainant again requested the accused to issue another cheque, to which the accused issued second cheque bearing no. 119860 dated 19/11/2012 for Rs. 5,00,000/- drawn on the same bank and when it was presented to the bank, the said cheque also got dishonoured. The cheque was dishonoured for the remarks "payment stopped" vide cheque return memo dated 20/11/2012.
4. Pursuant to the first dishonour of the cheque, complainant presented the cheque for the second time and even the second time, it was dishonoured Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 2/18 with the remarks "payment stopped" vide cheque return memos dated 26/12/2012. The complainant on receiving intimation of dishonour of cheque, got the legal demand notice issued to accused through his lawyer which was sent through registered post on 13/01/2013. The said legal notice was replied to by the accused vide his reply dated 12/03/2013. Complainant alleged that the accused had failed to pay the cheque amount within 15 days of receipt of the legal demand notice, which gave rise to the cause of action to institute the present complaint case against him. Hence the present complaint case was filed by the complainant under Section 138 NI Act.
5. On filing of complaint, the pre-summoning evidence of complainant Yogender Singh was recorded as CW1. He tendered his evidence by way of affidavit. Court took cognizance of offence and summoned the accused. On appearance of accused, he was admitted to bail on his furnishing bail bonds. Thereafter, notice under Section 251 Cr.P.C. was framed against accused to which he pleaded not guilty and claimed trial.
6. During the trial, complainant first and foremost examined himself as CW1. He filed his affidavit in his examination-in-chief as Ex.CW1/A, reiterating the averments made in the complaint. He tendered evidence during trial and proved the cheque in question bearing no. 119860 dated 19/11/2012 as Ex. CW1/1, Cheque Return Memo dated 26/12/2012 as Ex. CW1/2, Office copy of Legal Demand notice dated 13/01/2013 as Ex.PW1/3(Colly.), Postal receipts were also proved as Ex.PW1/4 and Ex. PW1/5 and the reply to the legal demand notice dated 12/03/2013 received by complainant was proved as Ex.CW1/6. CW1 was cross- examined by the accused's counsel at length.
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 3/18
7. After complainant concluded his evidence, statement of accused under Section 313 Cr.P.C. was recorded by the Ld. Predecessor on 24/02/2020. The accused denied his liability stating that he did not borrow money from complainant and his bag containing cheques including cheque in question had got stolen from Maurya Enclave Mall. He also stated that he had made a complaint to PS Maurya Enclave and had also filed a court complaint against the complainant. Accused denied his liability of cheque amount and expressed desire to lead defence evidence.
8. In support of his defence, accused at the outset examined himself as DW1. Then he summoned record from the PS Maurya Enclave and examined Ct. Daya Ram as DW2 and one HC Suresh Chand as DW3.
9. In his own deposition, where accused was examined as DW1, he testified that he was working at Indian Overseas Bank Branch, Maurya Enclave, as a peon on 10/10/2012. He deposed that documents and letters were distributed as and when directed by bank. He stated that on that particular day, he was directed by bank that some affidavits were lying in the bank and he had to get them from Registrar Court. That on 10/10/2012, he lost all his documents including some cheques i.e. cheque no. 119860 dated 20/11/2012 and cheque no. 120337 dated 09/01/2012 and he immediately made a complaint in PS Maurya Enclave and an NCR bearing no. 1564/2012 was got registered and he also intimated his bank and stopped the payment of his lost cheques so no one could misuse them. He further stated that he made a complaint to the police vide DD NO. 21/08/2014 in PS Maurya Enclave and in the office of DCP (North-West) in this regard vide Diary No. 9624 dated 21/08/2014 and he apprehended that the accused may have forged and misused his cheques.
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 4/18
10.DW1 was cross-examined by counsel for complainant. he deposed that one cheque alongwith some documents were misplaced by him and he had filed a complaint before concerned PS in this regard. He denied the suggestion that he had given the cheque in question to the complainant Shri Yogender Singh on or before 19/11/2012. He admitted it to be correct that he had given the complaint on 10/10/2012 at PS Maurya Enclave regarding misplacing of the cheque in question. He stated that he was never called by the police officials of PS Maurya Enclave regarding the inquiry of said complaint. He denied the suggestion that the complainant had misused the cheque in question. He also denied the suggestion that he had intentionally stopped the payment of the said cheque which was issued to complainant. He denied the suggestion that the cheque was issued by him to the complainant regarding the loan amount and also denied the suggestion that he had made a false complaint qua misplace of cheque in question at the PS Maurya Enclave. He denied the suggestion that he was deposing falsely.
11.Accused in his defence also summoned record from PS Maurya Enclave. DW2 Ct. Daya Ram brought the summoned record i.e. record of DD No. 31B dated 21/08/2014 proved as Ex.DW2/A and stated that he does not have personal knowledge about the investigations done by the IO in that case. Accused also examined DW3 HC Suresh Chand who appeared with the record of NCR No. 1564/2012 dated 10/10/2012 proved as Ex.DW3/A given by Ashok Kumar, the accused herein. He also deposed that he does not have any personal knowledge of the case.
12.Defence evidence was closed by accused after examination of the above three witnesses.
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13.The court thereafter fixed the case for final arguments. Submissions were heard from the rival parties and entire record of the case was perused thoroughly.
14.As mentioned at the inception of the judgment, this is a complaint case filed under Section 138 of the Negotiable Instruments Act,1881. As per Section 13 of the NI Act, a cheque is a negotiable instrument which allows transfer of funds from one entity to another i.e. from the drawer of the cheque to either the payee or to the holder in due course of the cheque and for the purpose of bringing sanctity to commercial transactions being conducted through cheques, Section 138 was added to the NI Act, as was observed by the Hon'ble Delhi High Court in G D Kataria vs Avl Leasing & Finance Ltd, (CRL.REV.P. 774/2018, 3 February, 2021).
15.Section 138 NI Act being the crucial provision, specifies certain mandatory ingredients and in order to ascertain whether the accused has committed the offence under Section 138 of Negotiable Instruments Act, 1881, it is imperative to examine separately as to whether the indispensable ingredients constituting the offence have been made out. The said ingredients are as under:
1) Existence of a legally enforceable debt or liability and issuance of a cheque in discharge of the said debt or liability;
2) Dishonour of cheque in question which must have been drawn on an account maintained by the accused;
3) Service of legal demand notice within 30 days from receipt of return memo showing dishonour of cheque, from the bank seeking payment of cheque amount within fifteen days from the date of service;
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 6/18
4) Non-payment of cheque amount within fifteen days from the date of service of notice; and
5) Filing of complaint within one month from the date on which cause of action arises.
16.Proof of the above-mentioned ingredients is essential for proving offence under Section 138 NI Act against an accused. Besides this, the NI Act being a special legislation, has drifted from the general rules of evidence which mandate the prosecution to prove its case against the accused beyond all reasonable doubts. Under the law of negotiable instruments, if the accused admits his signature on the cheque in question, certain statutory presumptions arise in favour of the complainant, making it thereafter essential for the accused to rebut those presumptions by raising plausible and believable defences. The statutory presumptions being given under Section 118 and Section 139 of the NI Act, provide that unless the contrary is proved, court shall presume that every negotiable instrument was made or drawn for a consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for a consideration and likewise, under section 139 NI Act court shall presume that the holder of a cheque received the same for the discharge in whole or in part of any debt or other liability. The combined reading of the two provisions casts a statutory duty on the court to raise presumptions in favour of complainant. Needless to say, these presumptions are rebuttable in nature and can be rebutted by the accused by raising a probable defence in his favour, leading the court to believe that either the liability of accused to pay the cheque amount does not exist or its non-existence is so probable Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 7/18 that any prudent man would act upon the supposition that it does not exist. The standard of proof for rebutting the presumptions is preponderance of probabilities and not proof beyond reasonable doubt. Reliance is placed on Kumar Exports vs. Sharma Carpets [(2009) 2 SCC 513], K.N. Beena vs. Muniyappan and Another (AIR 2001 SC 2895), Laxmi Dyechem vs. State of Gujarat 2012 (12) JT 65, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore, AIR 2010 SC 1402.
17.In the case of K. N. Beena v. Muniyappan AIR 2001 SC 2895, it was observed as follows:
"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 rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal v. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view.
7. In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/ averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant /Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."
18.In the case of Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897, it was observed as follows:
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 8/18 "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, as noted in State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61, 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 introduced 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 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.(1958 Cri. L.J. 232) xxx xxx xxx xxx The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted"
Further in the case of Girishbhai Natvarbhai Patel Vs. State of Gujarat and Anr. 2006 (1) DCR 594, it was held as follows:-
"It is an established position of law that under the scheme of Negotiable Instruments Act, especially under Scheme of 118 and 139 the statutory presumption is created in favour of the complainant and the court has to presume and proceed on the basis of this presumption unless it is dislodged by the accused on the strength of leading cogent and convincing evidence in support of his claim".
In the case of Saftarsab Vs. B. Allaiah @ Allapa 2006 (1) DCR 307 it has been observed as under :
Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 9/18 "Section 118 based on special rule of evidence is applicable to negotiable instruments and the presumption is one of law and thereunder a Court shall presume inter alia that the negotiable instrument or the indorsement was made or indorsed for consideration. In effect, it throws the burden of proof of failure of consideration on the maker of the note or the indorser. The burden is on the maker of the instrument to discharge the same. Further, as per Section 101 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. Therefore, the burden initially rests on the plaintiff who has to prove the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side"
19.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."
Thus, it is trite law that on proof of the foundational facts, a presumption arises as to the cheque having been issued in discharge of a legal liability, and the burden to rebut the said presumption lies upon the accused. This is known as the rule of reverse onus, which casts burden on accused to disprove the presumptions and it is now the settled principle of law that the accused can displace this presumption on a scale of preponderance of probabilities and 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 Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 10/18 circumstances of the case, act on the supposition that the liability does not exist. It is further settled position of law that rebuttal of complainant's case can be successfully achieved by accused by either himself bringing in cogent evidence of the nature which can probabalize his defence of non-existence of liability or by point out gaping holes in the complainant's case.
20.In the facts of the present case, it is to be noted at the inception that the accused has admitted that the cheque in question proved as Ex.CW1/1 bears his signature. The accused in his response to the general questions put to him by the court while framing notice under Section 251 of the Crpc. admitted that the cheque in question was signed by him. The accused however, declined that he had any liability towards the complainant for the cheque amount or that there existed any legally enforceable debt or liability towards the complainant on the ground that his bag containing four signed cheques was stolen from Maurya Enclave Mall, meaning thereby he claimed, that he had not issued the cheque in question to the complainant for payment of any debt or liability towards him. He also stated that he had got the payment of the cheque in question stopped from the bank by giving instructions to the bank in order avoid misuse of the cheques.
21.Before commencing appreciation of evidence led by both parties, it would be profitable to advert to the settled legal position with regard to dishonour of cheques for the reason of stopping of payment by the drawer. It be noted that there is no gainsaying the fact that the special provision of Section 138 of the NI Act gets attracted even when a cheque is dishonoured for the reasons of "payment stopped by the drawer". The Hon'ble Supreme Court has in a plethora of decisions reiterated and Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 11/18 reinforced the legal position in this regard. Reliance herein is placed on Electronics Trade and Technology Development Corporation Ltd. vs. Indian Technologists and Engineers (Electronics) Pvt. Ltd. & Anr., (Decided on 22nd July, 1996), Modi Cements Ltd. v. Kuchil Kumar Nandi reported in (1998) 3 SCC, M/s MMTC Ltd. & Anr. Vs. M/s Medchl Chemicals & Pharma Pvt. Ltd. & Anr., (Decided on 19 th November, 2000) wherein the Hon'ble Supreme Court made the situation crystal clear that even though the reason of stopping of payment by the drawer is not mentioned in the provision of Section 138 NI Act in so many words, but the same still cannot be eschewed from consideration and Section 138 NI Act would get attracted whenever a cheque is dishonoured for the abovesaid reason.
22.The provision of Section 138 NI Act becoming squarely applicable on cheques getting dishonoured for the reasons of payment stopped by the drawer, when the accused herein admitted to have signed the cheque in question, then the statutory presumptions enunciated in Sections 139 and Section 118 of the NI Act stood attracted. As noted in the foregoing paragraphs, these presumptions are rebuttable in nature and the accused was bound to bring in evidence for rebutting the said presumptions for proving the non-existence of a legally enforceable debt or liability.
23.In the present case, the accused has from the inception of the case and even from the time of the legal demand notice having being served on him, vehemently denied his liability and maintained the stand of non- existence of the debt or liability towards the complainant. Non-existence of debt or liability towards the complainant could have been established by accused either by producing evidence in support of his case or by pointing out contradictions and loopholes in the case of complainant, to Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 12/18 establish the falsities in complainant's case. The presumptions in favour of complainant stand as it is, unless they are dislodged by the accused on the strength of cogent and convincing evidence in support of his claim and the standard of proof for rebutting the presumptions being preponderance of probabilities and not proof beyond doubt.
24.The complainant of the present case urged that there were friendly relations between the accused and him. He urged that when the accused suffered financial losses during trading in shares, latter sought financial assistance from the former and complainant out of friendly relations between both of them, lent a sum of Rs. 5 lacs to accused in the month of August, 2011. It was also urged that when complainant requested for return of his money, accused issued one cheque bearing no. 120337 for 09/01/2012 which was returned on account of delayed presentation by the bank and later for discharging his liability, the accused issued another cheque bearing no. 119860 for 19/11/2012, which was dishonoured for the reason of payment stopped by the drawer.
25.Adverting now to the accused's defence, it has been observed that a fairly good attempt has been made by accused to dislodge the complainant's case. In his plea of defence, raised before the court at the stage of framing of notice under Section 251 of the Code, his reply was "My bag containing four signed cheques was stolen from Maurya Enclave Mall. I had also made a complaint to PS Maurya Enclave and had filed a court complaint against the complainant alongwith an application u/s 156(3) of the Crpc. which is pending before the court of Ms. Ekta Gauba, Ld. ACMM. I had also issued stopped payment instruction to my banker in respect of all four stolen cheques."
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26.This plea of defence raised by accused cogently suggested that while visiting the Maurya Enclave Mall, he had got his bag comprising of cheques stolen and he immediately made a complaint to the police station regarding the theft of the bag. The plea of defence of accused also suggests that accused pointed the finger of guilt on the complainant for stealing the bag of cheques and for which he alleged to have filed an application under Section 156(3) Crpc. against the complainant for registration of FIR against the complainant for stealing and misuse of the stolen cheques. Starkly contrary to his version raised in his plea of defence recorded before the court, the accused in his reply to the legal notice dated 12/03/2013 sent to the complainant proved as Ex.CW1/3, portrayed a different picture of how the bag of cheques was lost. The relevant portion of the reply to legal notice in para 8 is, "That my said client has lost some cheques including the alleged cheques bearing no. 120337 and 119860 and my client made a complaint with the police." Bare reading of the abovesaid reason leads to the conclusion that according to accused, his bag of cheques had merely got lost and not stolen. Meaning thereby, no outside agency/person was involved in stealing of the cheques and it had merely got lost/misplaced from his possession. These self-contradictory versions cast a shadow of doubt on the defence of accused. If on one hand, the bag of cheques had been stolen, the other circumstance of it having been misplaced could not be true. These being two contradictory situations, couldn't fit in one box and doubt is raised about the genuineness of accused's defence.
27.Contradictions in the defence of accused is also evident from his testimony recorded before court as DW1. His deposition is apparently cryptic, unclear and ambiguous and doesn't clearly spell out how and Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 14/18 when the cheques in question were lost or stolen. Accused deposed that on the particular day, he was directed by bank that some affidavits were lying in the bank and he had to get them from the Registrar Court. Accused's deposition does not specify how while transferring affidavits/documents from the Registrar's court, he went to the Maurya Enclave Mall, where he allegedly lost his cheques. His deposition is reticent on the purpose of his visit to the Maurya Enclave Mall. His deposition also fails to give details of the time when he visited the Mall i.e. after visiting the Registrar's court or before that and also does not specify the fate of the affidavits which he was directed to get from the Registrar's court. Next, there is patent discrepancy in the defence version with regard to the place where the cheques were lost. In his deposition, accused stated that the cheques were lost in Maurya Enclave Mall, but in the Non-cognizable report bearing no. 1564/2012 dated 10/10/2012 proved as Ex.DW3/A the place of loss of cheques has been mentioned as KP Block at Pitampura. The NCR interestingly, does not even have a whisper about the accused visiting any Mall, much less the Maurya Enclave Mall. As alleged by accused that he got the NCR registered on the same day on which the bag of cheques was lost, he ought to have mentioned that the same had been lost/stolen in the Maurya Enclave Mall itself and ought not to have stated the place of loss of cheques as KP Block, Pitampura.
28.Accused has also alleged that he had filed an application under Section 156(3) Crpc. against the complainant. However, the details or record of the said application was never proved on record. Court was never informed about the fate of the Section 156(3) application and there was also failure of accused to inform the court, whether any FIR was Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 15/18 registered on his application or not. The court thus did not have the means of assessing the veracity of his contention. Moreover, merely getting an NCR recorded or filing an application under Section 156(3) Crpc., does not automatically lead to the conclusion that defence of accused has been proved or was sufficient to rebut the statutory presumptions raised in favour of complainant. Likewise, in the present case the accused's defence appears doubtful and ambiguous.
29.Through the thorough analysis discussed in the foregoing paragraphs, the falsities and contradictions in defence raised by accused have surfaced. These are glaring contradictions that cannot be overlooked. Accused had denied existence of any existing debt or liability towards the complainant solely on the ground that the cheque in question had not been issued to complainant and on the contrary the said cheque had been lost/stolen by him. But since the sole defence taken by him has failed to rise upto the level of the standard of proof set by law, this court fails to believe the theory served by him regarding the non-existence of any debt or liability towards the complainant or that the cheque was not issued for a consideration. The accused has evidently failed to rebut the statutory presumptions in favour of complainant that the cheque in question was not issued for the discharge of any debt or liability to the complainant. His defence having failed, the first ingredient for proving the offence of Section 138 NI Act, stands duly proved.
30.The second crucial ingredient for establishing guilt of accused is the dishonour of cheque in question. The cheque in question bearing no. 119860 proved as Ex.CW1/1 was dishonoured on its presentation by the bank for the reasons of "payment stopped by the drawer". The intimation of dishonour of the cheque was given by the bank vide return memo Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 16/18 dated 26/12/2012 Ex.CW1/2. The factum of issuing instructions to the bank for stopping payment of the cheque has been admitted by accused in his plea of defence raised at the stage of Section 251 Crpc. In view of the categorical admission by accused that he gave instructions to the bank for stopping the payment of the cheque, the same need not be proved. It is an established position of law enunciated in Section 58 of the Indian Evidence Act, 1872 that facts admitted need not be proved. The provision stipulates that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. In view of the specific admission of accused that he has himself admitted to have issued instructions to his bank to stop payment, the second ingredient too stands proved.
31.Insofar as the third ingredient of service of legal demand notice is concerned, there lies no dispute as to the fact that legal demand notice dated 13/01/2013 proved as Ex.CW1/3 was served on accused within limitation prescribed by statute. Service of legal demand notice to him was admitted by accused during trial. Accused even replied to the legal demand notice vide his correspondence dated 12/03/2012. Hence even the third mandatory ingredient for proving offence under Section 138 NI Act stands proved beyond all reasonable doubt. Complainant has also proved beyond reasonable doubt that the accused failed to make payment of the cheque amount within 15 days of the dishonour of the cheque in question. This is an admitted fact clear from the facts of the case and hence the complainant had instituted the present complaint case against accused.
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32.Insofar as the last ingredient of filing the complaint within one month from the date of which the cause of action arises, regard be had to the fact that the complaint case was filed beyond the period of limitation of one month prescribed by Section 138 and Section 142 of the NI Act. But the complainant moved application for condonation of delay, and delay was duly condoned by the Ld. Predecessor vide Order dated 01/03/2017 after complainant cogently explained the reasons for the delay. Therefore, all the requisite ingredients for proving offence under Section 138 NI Act have been duly established by complainant during trial and the accused has apparently been unsuccessful in dislodging/rebutting the statutory presumptions stipulated under the Negotiable Instruments Act, 1881.
33. In view of the aforesaid facts and circumstances, the complainant has succeeded in proving that the accused had issued the dishonoured cheque in discharge of his legally enforceable liability and that the accused failed to make payment of the cheque amount within fifteen days from the date of service of the legal demand notice. The demand notice had been issued within the period stipulated by law. All the ingredients required to make out a case under Section 138 of Negotiable Instruments Act, 1881 have been proved beyond reasonable doubt. The accused is accordingly convicted for the offence under Section 138 read with Section 142 of Negotiable Instruments Act, 1881.
34.Let the accused be head on the point of sentence.
(This judgment contains 18 pages and all (Neeti Suri Mishra) have been signed by undersigned) A.C.M.M. (North)/Rohini Courts Delhi/24.03.2023 Ct. Case no. 4157/2016 Yogender Singh vs Ashok Kumar page no. 18/18