Delhi District Court
Mr. Ajay Singhal vs Smt. Meena Tandon on 28 October, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION JUDGE4
(SHAHDARA), KARKARDOOMA COURTS , DELHI
Cr. Appeal No. : 24/15
UID NO : 02402R0269542015
CC No. 428/14
PS: Shahdara
U/s: 138 N.I Act.
In the matter of
Mr. Ajay Singhal
S/o Sh. Raj Kumar Singhal
R/o 1/5359, Street No. 14
Balbir Nagar, Shahdara
Delhi110032 . . . . . Appellant
versus
1. Smt. Meena Tandon
W/o Sh. Ravi Tandon
R/o 1/7437, Gali No. 14
East Gorakh Park, Shahdara
Delhi110032.
2. The State (Govt. of NCT of Delhi) . . . . . Respondents
Date of argument : 15.10.2015
Date of order : 28.10.2015
Decision : Dismissed
Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 1/29
J U D G M E N T :
1. The present appeal has been filed against the judgment dated 19.05.2015 passed by Sh. Sunil Beniwal, Ld. ACMM, Shahdara, Delhi, in a complaint case bearing CC no. 428/14, titled as Meena Tandon Vs Ajay Singhal filed u/s 138 Negotiable Instruments Act. Vide the aforesaid judgment Ld. ACMM has convicted the appellant u/s 138 Negotiable Instrument Act (hereinafter to be referred as NI Act) and vide order dated 07.07.2015 the appellant has been sentenced to undergo two years rigorous imprisonment and fine (Ten Lakh Rupees) to the tune of double of the cheque and appellant has been directed to pay this amount as compensation to the respondent no. 1. In case, the appellant fails to pay the fine, Ld. trial court has directed that same be realized by attaching the properties of the appellant through SDM and in case fine is not realized, the appellant has been directed to further undergo six months simple imprisonment.
2. The brief facts of present case are that the respondent no. 1 /complainant filed a complaint u/s 138 of N.I. Act against the appellant/accused (hereinafter both the parties have been Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 2/29 referred as per their nomenclature in the complaint) on the basis of the following allegations:
(a) that the accused was the tenant of the complainant and he had sold his flat bearing no.687, Pkt7, Sector A6, Narela, Delhi to the complainant on 19.12.2013 for Rs. 18,00,000/ through GPA, however, possession of the said flat was not given to the complainant.
(b) that immediately after execution of GPA, the accused decided to buy back the same flat from the complainant on 19.12.2013 and he agreed to pay back the sale consideration of Rs.18,00,000/ and also a sum of Rs. 2,00,000/ as compensation. In this regard an agreement to sell was executed and sale documents were to be executed by 15.01.2014. In order to pay the said amount, the accused issued three cheques to the complainant at the time of execution of agreement to sell. Out of these three cheques, the cheque no. 807982 got dishonoured when presented for encashment.
(c) That the accused failed to fulfill his commitment by 15.01.2014, thus, on 17.01.2014, the accused entered into a notarized MOU with the complainant and issued Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 3/29 the following four cheques amounting to rupees Twenty Lakhs to the complainant and the previous three cheques were destroyed.
Cheque Dated Rs.
no.
807994 25.01.2014 5,00,000/-
807995 10.02.2014 5,00,000/-
807984 25.02.2014 5,00,000/-
807985 05.03.2014 5,00,000/-
(d) that the complainant deposited the cheque no. 807995 dt. 10.02.2014 with her banker i.e. Khattri Cooperative Urban Bank Ltd, Karkardooma, Delhi and the same was returned as dishonoured on 12.02.2014 due to insufficient funds.
(e) that the complainant got issued a legal notice to the accused on 13.02.2014 for demanding the aforesaid amount through speed post. According to the proof of delivery taken from the website of Indian Post the accused was served with this notice on 14.02.2014 & 17.02.2014. Accused neither replied the legal notice nor made the payment. Thus, complainant filed the Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 4/29 aforesaid complaint against the accused u/s 138 of N.I Act 1881.
3. On 11.07.2014, a notice u/s 251 Cr.P.C for commission of the offence u/s 138 N. I. Act was issued to accused to which he pleaded not guilty and claimed trial.
4. In support of her case, complainant examined herself as CW1. The complainant brought on record the following documents in her evidence:
(a) Memorandum of Understanding (MOU) Ex- CW 1/C
(b) General power of attorney, agreement to sell, receipt, possession letter, undertaking, Will deed all dated 19/12/2013 collectively Ex. CW 1/D2.
(c) Cheque exhibit CW 1/A
(d) Cheque returning memo exhibit CW 1/B
(e) Legal Notice exhibit CW 1/D
(f) Postal receipts EX CW 1/E (colly)
(g) Tracking report of delivery of legal notice EX CW 1/F & EX CW 1/G.
5. After completion of complainant's evidence the statement of accused was recorded under section 313 Cr.P.C. Accused denied the claim of the complainant and he raised the following defence in his statement: Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 5/29 "Ans. I have never signed any Memorandum of Understanding. But it is correct that I signed on some blank papers. It is also correct that I had issued the abovementioned four cheques but they were issued as security and that too to the husband of the complainant Mr. Ravi Tandon. It is correct that all the abovementioned four cheques were signed by me but they were issued as blank."
6. In support of his defence, the accused examined himself as DW1 and Mr Dinesh Kumar Kashyap, Notary Public as DW2.
7. On completion of the trial ld. trial court convicted the accused thereby holding that accused failed to prove the defence taken by him and also failed to rebut the presumption of section 118 and 139 N.I Act.
8. Now the present appeal has been filed by the appellant mainly on the following grounds: i. That ld. trial court failed to appreciate that accused did not owe any legal debt to the complainant. The blank cheques were handed over to the husband of the complainant in good faith against loan which was not arranged by him. The complainant has forged and fabricated the documents in connivance with her husband and her case is based on false and concocted story. ii. That ld trial court failed to appreciate that complainant did not have the personal knowledge of the facts of the case. She deposed that her husband did the transaction, thus to prove the facts, the complainant ought to have Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 6/29 examined her husband. Thus, the complainant is not the aggrieved party, iii. That ld. trial court failed to appreciate that the complainant failed to prove the transaction and the documents.
iv. That ld. trial court failed to appreciate that the documents ExCW1/C and CW1/D2 were not proved as per law as complainant did not go through the contents of the documents and only her husband had gone through the same.
v. That ld trial court failed to appreciate that the defence of the accused that he had handed over the blank signed cheques and blank documents as security was not rebutted by the complainant during the entire trial. The accused rebutted the claim and documents of the complainant by examining himself as DW1. The accused also examined Mr. Dinesh Kumar Kashyap, Notary Public who proved that his signatures on the documents ExCW1/D2 were forged by the complainant and there was no entry in his register (EXDW2/1) regarding attestation of these documents.
vi. That ld. trial court failed to appreciate that accused had only signed the cheque and body of the cheque was not filled by the accused.
vii. That ld. trial court failed to consider that legal notice was replied. The reply sent to the ld. counsel of complainant was received back but reply sent to the complainant was not received back.
viii. That the case of complainant is doubtful due to innumerable inconsistencies and contradictions in the testimonies of the complainant and as there is no independent witness.
ix. That ld. trial court has not considered the arguments and written arguments submitted on behalf of the accused. Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 7/29 x. That ld. trial court failed to appreciate that the complainant had every motive to falsely implicate and therefore, she filed the complaint at the instance of her husband with ulterior motive.
9. I have heard the submissions of Ld. counsel for the appellant/ accused and also Ld. counsel for the respondent no.1/ complainant and gone through the record of the case.
10. It is held by Hon'ble Supreme Court in the case of 2000(2) SCC 745 titled as M/s Kusum Ignots & Alloys Ltd. Vs M/s Pennar Peterson Securities Ltd that to constitute an offence u/s 138 of Negotiable Instruments Act following requirements are to fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii)that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii)that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv)the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 8/29 writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v)the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
11. Now, let us see, if the aforesaid requirements have been fulfilled in the present case. The fact that the complainant was tenant of the complainant. Thus, the both parties were known to each other. It is further undisputed that the cheque in question i.e. cheque no.807995, Dt. 10.02.2014, Drawn on Andhra Bank, Chandni Chowk Branch, Delhi (ExCW1/A) was drawn by the accused. It is further clear from the cheque returning memo Dt. 12.02.2014 (ExCW1/B) that complainant had presented the the cheque in question for encashment with her banker i.e. Khattri Cooperative Bank Ltd, Karkardooma and it was dishonoured due to insufficient funds. It is further clear from the cheque returning memo that within 15 days of the return of the cheque, a legal notice dt. 13.02.2014 (ExCW1/D) was issued and dispatched on the same day by the counsel of the complainant at both the address of the accused by Speed Post (Postal Receipt ExCW1/E colly.) for demanding the amount of the dishonoured Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 9/29 cheque. It is further clear from undisputed tracking report/proof of delivery (ExCW1/F and CW1/G) that legal notice was served upon the accused at his both the addresses. The accused has also not disputed the service of legal notice. During cross examination, accused has admitted that he received the legal notice. Thus, service of the legal notice upon the accused stands proved.
12.It is also clear from the record that accused did not pay the cheque amount neither within 15 days of the service of the legal notice nor thereafter. Thus, it is clear from the record that all necessary requirements to constitute the offence u/s 138 N.I. Act, have been fulfilled and now only element which is left to be seen is whether the accused had issued the cheque in question to the complainant and if so, whether the same was issued against the discharge of the aforesaid liability of payment of the sale consideration of the flat. This point has been discussed in detail in the later part of the order and before making further discussions on the factual aspects of the case, it is deemed necessary to firstly discuss the relevant provisions of N.I Act and the legal position which is necessary to be taken into consideration for adjudicating the complaint under section 138 of N.I Act. Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 10/29
13. The claim based under the provisions of negotiable instruments act are exception to the general rule of law that burden of proof lies on the prosecution. There are two specific provisions in negotiable instruments acts i.e. section 118 (a) and 139 which contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused has to be assumed guilty of the offence. The relevant provisions of section 118 (a) and section 139 reads as under: Sec 118 Presumptions to negotiable instruments.- Until the contrary is proved, the following presumption shall be made:-
(a) of consideration- that every negotiable instrument was made or drawn for consideration, Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 11/29 and that every such instrment, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated, or transferred for consideration.
139. Punishment in favour of holder: It shall be presumed, unless the contrary is provided, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
14. It has been held by Hon'ble Supreme Court in the case reported as 2001 (6) SCC 16 titled as Hiten P. Dalal v. Bratindranath Banerjee that the presumption mentioned in the section 139 of N.I. Act is a presumption of law and not the presumption of fact and thus, this presumption has to be drawn in favour of the drawee and burden to rebut the presumption with the probable defence is on the accused. The relevant para of the aforesaid case law reads as under:
21. In other words, provided the facts required to form the basis of a presumption of law exist, 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" [Section 3 : Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 12/29 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'
15. It has been held by Hon'ble Supreme Court in the case of reported as 2010 (11) SCC 441 titled as Rangappa v. Mohan that presumption of section 139 of N.I. Act also includes the existence of legal enforceable debt. The relevant para of the said judgment reads as under:
14. In light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
16. In Bharat Barrel v. Drum Manufacturing AIR 1999 SC 1008, Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.
17. Thus, in view of the law laid down by Hon'ble Supreme Court in the aforesaid cases, the presumption as contemplated under section 139 N.I. Act has to be drawn in favour of the drawee that the cheque in question was issued in discharge of legally enforceable liability. Thus, in the present case also complainant Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 13/29 was not required to prove the salepurchase transaction and initially the claim of the complainant was to be assumed to be correct by drawing the presumption of section 139 of N.I. Act and burden to rebut the presumption with his probable defence was on the accused.
18.The accused was required to establish on record the following defence taken by him:
(a) That he had not entered into any agreement to sell with the complainant and that Sh. Ravi Tandon, the husband of the complainant had assured the accused to get him a loan and thus, he had handed over some blank signed documents and cheques to the husband of the complainant as security which complainant has misused in connivance with her husband.
(b) That accused did not enter into the said MOU and he did not issue the four cheques(as detailed in para no. 2 (C) in pursuance to the said MOU and the said four cheques were blank when issued and the same were issued as security for obtaining loan.
Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 14/29
19. In his application under section 145(2) of N.I. Act, the accused has taken the defence that he signed blank documents and cheques and handed over the same to the Mr. Ravi Tandon, the husband of the complainant as Mr. Ravi Tandon had promised him to get a loan but Mr. Ravi Tandon neither got him the loan nor returned the said documents and rather Mr. Ravi Tandon and his wife/complainant have misused the said blank documents to forge the General power of attorney, agreement to sell, receipt, possession, letter, undertaking, Will deed all dated 19/12/2013 collectively Ex. CW 1/D2 and they have filed the false complaint on the basis of these forged documents. Since, the accused has taken the defence of forgery, the in view of the provisions of section 101 of evidence act, the onus was on him to prove his claim of forgery with all relevant details as to how and in what manner the forgery has been committed with him. However, after considering the record and the evidence, it is clear that he defence of the accused is apparently false and unbelievable for the following various reasons:
(a) The accused has simply taken this defence without mentioning any particulars about the loan. The accused has not mentioned any particulars as to how much loan Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 15/29 amount was to be arranged, the date when he requested Mr. Ravi Tandon for the loan, the financial institution from which the loan was to be arranged, how many documents were signed by him, how many blank cheques were issued by him. The accused has also not proved that Mr. Ravi Tandon was working in a financial institution or associated with. This fact was very much relevant here as, Mr. Ravi Tandon could have promised to get a loan arranged for the accused only when he would have been associated with some financial institution in some manner. Thus, in the absence of these material particulars it cannot be believed that the husband of complainant would have promised to get him a loan. The plea of the accused is lacking material particulars which show that accused has taken a defence just for the sake of defence and it has no substance.
(b) Accused has only claimed that he had signed the blank documents, however, besides the signatures, these documents are having the thumb impression also. The accused has not mentioned in his application under Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 16/29 section 145 (2) N.I. Act that he had appended his thumb impression also. The accused has not disputed the authenticity of the thumb impressions present over these documents in the entire proceedings. If, these thumb impressions would not be of the accused and complainant would have forged the same, he must have disputed these thumb impressions, however, accused did not dispute the same during the entire trial of the case which further proves the falsity of the defence of the accused.
(c) Likewise, the accused never stated that while allegedly handing over the blank singed documents, he had also handed over his photographs. All these documents has the photographs of the accused and the photograph affixed on the MOU has been signed over and across the photo. This also shows that the accused did not sign any blank document as claimed by him.
(d) Likewise, the accused never stated that he had signed any blank paper having revenue stamp. One of these documents is the payment receipt of the sale Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 17/29 consideration of Rs.18 Lakhs. This receipt has the signatures of the accused over and across the revenue stamp. This further falsifies the claim of signing the blank documents by him.
(e) The falsity of the claim of accused is further clear as accused has taken inconsistent defence at different stages. In the application u/s 145 (2) N.I. Act, the accused contended that he had not signed the documents EXCW1/C and CW1/D2 as executor and he had only signed blank paper and stamp paper for obtaining loan which have been forged. Thus, in his application, the accused did not deny the fact that the said documents has his signatures but he only endeavoured to say that the blank documents signed by him have been forged and converted into the GPA and other documents. On the other hand during the evidence of complainant, the accused even tried to disown his signatures by saying that those are forged and fabricated signatures. Further more, the accused during his cross examination, did not completely disown his signatures and gave evasive answer and stated that Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 18/29 those signatures appear to be his signatures. Even otherwise, the onus was on the accused to prove the forgery of the documents and his signatures, however, except the mere contention, the accused has not led any evidence to prove the forgery.
(f) The falsity of the claim of the accused is further clear from the fact that during his cross examination accused stated that he had requested Mr. Ravi Tandon for arranging loan in Dec, 2013, thus, if this statement is read alongwith his defence, then as per accused, he allegedly signed the blank documents/stamp paper in Dec, 2013 only but it is clear from the EXCW1/C, that the MOU which is prepared on the estamp paper was executed only on 16.01.2104. Thus, it cannot be assumed that accused had signed the same in the Month of December, 2013. Since, the defence of the accused is apparently false and accused has failed to prove his defence of forgery, all the documents relied by the complainant including MOU is to be assumed that these were duly executed and also that these Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 19/29 documents reflect the true account of the transaction held between the parties.
(g) The accused has also contended that the cheque in question and other cheques were blank when given to Mr. Ravi Tandon and the body of cheques was not filled up by the accused. Thus, accused again contended that the body of cheque was not in his handwriting and therefore, the onus to prove the same was also on the accused but again accused has simply contended and led no evidence to prove the same. Even otherwise it is clear from the aforesaid discussions that the MOU was executed by the accused which clearly mentions that the accused had issued the cheque in question alongwith other three cheques towards discharge of his liability of making payment of the sale consideration of the flat. Thus, it cannot be assumed that accused had issued blank signed cheques. It is also prima facie clear from the bare perusal of the cheque in question that the signatures and the body of the cheque has been filled with the same ink and hand writing which also shows that it was filled up in one go.
Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 20/29
(h) Moreover, when accused has taken the plea of forgery, thus, in view of the provisions of section 8 of Evidence Act, his conduct subsequent to the alleged forgery is also a relevant fact to the matter in issue. It is to be seen as to whether the accused acted diligently after the factum of forgery revealed to him or he remained dormant. It is clear from the record that accused had come to know about the alleged forgery and he got stopped the payment of the cheque in question, however, it is clear from the admission of accused made by him during his cross examination that he did not take any action against Mr. Ravi Tandon or the complainant for their alleged act of forgery. No prudent man would keep silent when a serious offence of forgery is committed against him and when the alleged offender also wants to misuse the forged documents in the legal proceedings especially in criminal complaint. It is clear from the record that according to the accused, the alleged forgery was committed somewhere in Jan, 2014 and he came to know on 14.02.2014 when he was served with the legal notice; however, the accused has Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 21/29 not taken any action against the complainant or her husband till date. The inaction on the part of the accused speaks for itself that the documents were duly executed and no forgery was committed with him.
20. It is clear from the aforesaid discussions that the accused has taken the false defence of signing of blank cheques and documents. It is further clear from recitals of the MOU EXCW1/C that the accused had bought back his flat from the complainant and to pay the sale consideration of Rs.20 Lacs, the accused had initially issued three cheques Nos. 807982 for Rs. 3,00,000/, Cheque No. 807983 for Rs. 7,00,000/ and Cheque No. 805125 for Rs. 10,00,000/ and out of the said cheques, the cheque no.807982 had got dishonoured. It is further clear from the said MOU that after dishonour of the said cheque complainant and the accused resolved their dispute and accused issued the four post dated cheques (including the cheque in question) to the complainant as detailed in para no. 2 C of this order. Thus, it is clear from these discussions that accused had issued the cheque in question against due consideration.
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21. Furthermore, the present case is a fit case where adverse inference should be drawn against the accused. During cross his cross examination, the accused has admitted the service of the legal notice and also that he did not send reply to the legal notice. During the course of arguments it was submitted by ld. counsel for the appellant/accused that the accused had sent the reply to the legal notice. She submitted that reply sent to the ld. counsel for the complainant was received back; however reply sent to the complainant was not received back. This court doesn't find any merit in this plea as firstly no copy of reply has been proved on record by the accused and secondly, accused has himself admitted in the cross examination that he received the legal notice but did not send any reply. It is clear from the legal notice that complainant claimed that the accused had issued the cheque in question alongwith three other cheque to pay the sale consideration of the flat which accused had bought back from the complainant which got dishonoured. Thus it is clear that after the service of legal notice the accused must have come to know that the complainant would use the said cheque in the legal proceedings to demand the said amount. However, accused kept mum and did not take any action whatsoever against the Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 23/29 complainant for her allegedly misusing the cheque and making a false claim. If the cheque was issued without consideration and complainant had issued a false notice, the accused must have taken appropriate action against complainant and her husband for their alleged misdeed but he kept silent. It cannot be assumed that any prudent person would remain silent after he comes to know that the serious offence like forgery has been committed with him and also when the alleged offender is trying to stake claim on the basis of the forged documents. In the case reported as 2014(8) AD(Delhi) 26 and titled as 'Santosh Mittal Vs. Sudha Dayal, the Hon'ble High Court has held that the adverse inference can be drawn against the accused where accused has failed to controvert the allegation by sending a reply to the legal notice. The relevant para of the said case reads as under: '21. Admittedly, no reply to the legal notice was sent by her thereby rebutting the allegations made by the complainant. As far back in the year 1980, in Kaluram v. Sita Ram, 1980 RCR Note 44, it was held by this Court that when serious allegations are made in a notice and defendant failed to send any reply, then the allegations are deemed to have been admitted. Even in Rangappa (supra) relied upon by the learned counsel for the appellant it was observed that failure on the part of the accused to reply to the statutory notice under section 138 of the Act lead to inference that there was merit in complainant's version.' Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 24/29
22. It has been held by Hon'ble Delhi High Court in the case reported as 172 (2010) DLT 561 V.S. Yadav Vs. Reena that it is for the accused to rebut the presumption of section 139 of N.I. Act and also that under what circumstances he had issued the cheque to the complainant as issuing a cheque is a serious business. It is also held that if the cheque was not issued in discharge of the debt then accused is supposed to take appropriate action seeking return of his cheque. In case the accused failed to establish the reason of issuance of cheque and also why he did not seek return of the cheque then it is to be assumed that he failed to rebut the presumption. The relevant portion of the para no.7 of the said case reads as under: '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 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.
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23. In the present case, the accused did not take any action seeking return of his cheque. The accused also did not reply to the legal notice. If the complainant would have raised a false claim, the accused would have rebutted the same by sending a reply. In view of the aforesaid discussions it is held that accused has failed to prove his defence. Consequently, the presumption of section 139 of N.I. Act remained unrebutted and accordingly it is to be presumed that accused had issued the cheque in question towards the payment of the sale consideration.
24.In view of these discussions it is held that accused has failed to establish his defence.
25.Before proceeding further it is necessary to make discussions on the grounds raised by the accused in the present appeal as well as legal issues addressed by ld. counsel for the accused during arguments.
26.Ld. counsel for the accused has contended that complainant evidence is liable to be ignored as she has admitted in her cross examination that she cannot read, write and understand English Language and her affidavit is in English. It is clear from the further part of cross examination of the complainant that she stated Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 26/29 during cross examination that she is aware of the contents of her affidavit and complaint as her husband had read over and explained the same before she had signed the same.
27.It is further contended that complainant has admitted that complainant is not the competent witness as she has admitted in the cross examination that her husband Mr. Ravi Tandon had got prepared the documents and she signed the same without going through the same, thus, to prove the execution of documents the complainant ought to have examined her husband. This court again doesn't find merit in this plea as it is clear from the cross examination of complainant that she firmly withstood the cross examination and remained firm on her basic stand that accused had sold his flat by virtue of the documents EXCW1/D2 and against consideration of Rs.18 Lacs. It is clear that she is well aware about the contents of the documents, though, she may not have personally read the same. Furthermore, the present case is not solely based on the said documents. The complainant has filed the present case on the basis of the cheque in question which was issued by the accused towards the part payment of the sale consideration of the flat which he bought back and to prove the same the complainant has also proved the MOU. Since, the Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 27/29 complainant has proved her case by her own evidence thus; complainant was not required to examine neither her husband nor any other witness to prove the aforesaid dealings.
28. It is also contended that complainant has falsely implicated the accused at the instance of her husband. However, the accused has not mentioned any reason whatsoever, for his false implication. Thus, in the absence of any concrete evidence it cannot be assumed that accused has been falsely implicated.
29. It is also contended that complainant has failed to prove her source of income and that she was able to make payment of Rs. 18 Lacs. Since, the presumption stood established in favour of the complainant, hence, under these circumstances, the complainant was not required to prove her source of income and factum of payment of 18 Lacs to the accused. Even otherwise, it is clear from the document EXCW1/D2, the receipt of payment of Rs.18,00,000/ executed by the accused that he had received the said sum from the complainant. Complainant has also proved vide EXCW1/C, the MOU that accused bought back the said flat and had issued the cheque in question towards the payment of the sale consideration. The complainant was cross examined at Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 28/29 length; however, nothing material has come on record to shake her testimony and she throughout remained consistent with her claim.
30.Thus, it is held that the accused has failed to rebut the presumption and complainant by way of her evidence has established the sale purchase transaction and that accused had issued the cheque in question & other three cheques towards the payment of sale consideration & compensation. The accused has failed to repay the cheque amount despite service of legal notice, thus, he is guilty of commission of offence u/s 138 N.I Act. It is most respectfully observed that the case laws cited by Ld. counsel for the appellant is not applicable to the present case.
31. Keeping in view the aforesaid discussions, this court does not find any infirmity in the order passed by learned ACMM and holds that the appellant has been rightly convicted u/s 138 N.I Act. Hence, the present appeal is liable to be dismissed and accordingly, the same is dismissed.
(Ajay Gupta) ASJ04/Shahdara/KKD Courts/Delhi.
(Announced in Open court on 28.10.2015) Cr. Appeal No. : 24/15 Ajay Singhal v. Smt. Meena Tandon Page 29/29