Delhi District Court
1. Rohitbhai Jivanlal Patel vs State Of Gujrat & Anr. Cr. Appeal No. 508 ... on 27 January, 2022
IN THE COURT OF RAHUL JAIN,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
DWARKA DISTRICT COURTS, DELHI.
JUDGMENT
Swapan Kumar Gosh ....................Complainant Versus Abhishek Roy Chaudhary ....................Accused Under Section 138 of N. I. ACT, 1881
a) Sl. No. of the case : CT No. 4990786/2016
b) Alleged date of commission of offence : 23.12.2015 approximately
c) Name of the complainant : Swapan Kumar Gosh S/o T.P Gosh H-2/20H, Mahavir Enclave New Delhi-110045
d) Name of the accused : Abhishek Roy Chaudhary S/o Lt. Sh. Chanchal Roy Chaudhary L-69, Top Floor Mahavir Enclave New Delhi-110045
e) Offence complained of : Under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : January 27, 2022 BRIEF STATEMENT OF THE REASONS FOR DECISION: -
1. Vide this judgment, this Court shall dispose of complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Swapan Kumar Gosh against accused Abhishek Roy Chaudhary. In gist, it is alleged in complaint that accused having friendly relations with the complainant approached the complainant for a loan of Rs. 3,75,000/- in month of RAHU Digitally signed by RAHUL JAIN Date:
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February 2013 which was paid on 15.02.2013. The parties also executed a Loan Agreement dated 29.07.2013 Ex CW1/1 in which it was agreed that accused shall pay an interest amount of 7000/- w.e.f. 01.06.2013 and also agreed to clear the principal amount of Rs. 3,75,000 on or before 31.03.2014. Accused issued a Cheque Ex. CW1/2 of principal amount of Rs. 3,75,000 on the day of execution of Loan agreement in favour of complainant. After expiry of the above said period i.e. 31.03.2014 the complainant approached for the loan amount and interest amount to the tune of Rs. 70,000. Accused issued one more cheque Ex. CW1/3 amounting to Rs. 70,000. Complainant presented all the cheques, but same were dishonored vide memos Ex.CW1/4 to Ex.CW1/5 with reasons 'Funds insufficient'. The complainant sent a legal demand notice on 19.01.2016 Ex.CW1/6, however, accused did not make payment within statutory period of legal demand notice, hence, this complaint.
PRE-SUMMONING EVIDENCE & NOTICE
2. Pre-summoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was put to the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 24.08.2016 to which accused pleaded not guilty and claimed trial. It was stated by accused that he did not take any loan from the complainant. Accused gave the present cheques as blank signed cheques to the Complainant as he is a broker and the accused approached him to buy property at Mahavir Enclave. Blank signed cheques were given RAHU Digitally signed by RAHUL JAIN Date:
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as payment was to be made through cheque. Later, according to the accused complainant told him that the property owner Mangli Dass does not have bank account and payment has to be made in cash. Accused made the payment in cash and asked complainant to return the cheques to which complainant told him that they have been destroyed. The accused was granted opportunity for cross examination of the complainant which was thoroughly conducted.
COMPLAINANT'S EVIDENCE
3. Complainant only stepped into the witness box at the pre-summoning stage and tendered his affidavit Ex.CW1/A reiterating almost all facts of complaint, stating all exhibits available on record i.e. cheques and return memos from Ex.CW1/1 to Ex.CW1/5; the demand notice Ex.CW1/6, sent via postal receipt Ex.CW1/7, courier receipt Ex. CW1/8 and delivered as per tracking report Ex.CW1/9. The complainant was thoroughly examined by the counsel of the accused wherein the complainant remained steadfast on his version.
Then, complainant also examined Sh. Tanmay Mitra as CW1/2 who supported the version of the complainant.
Complainant on closing of accused's right to cross examine him, closed his post-notice evidence vide statement dated 28.05.2018 and thereafter, matter was fixed for recording statement of accused.
STATEMENT OF ACCUSED
5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, RAHUL Digitally signed by RAHUL JAIN JAIN 16:11:41 +05'30' Date: 2022.01.27 1973 separately. Incriminating evidence was put to him. Accused denied all the allegations and defended that complainant obtained the cheques in question in blank signed manner for the purpose of bayana amount and registration qua the property L- 64, Top Floor , Mahavir Enclave. The accused further defended that the complainant has misused the cheques. He also denied executing the Loan agreement Ex. CW1/1. Accused opted to lead evidence in his defence, thereafter, matter was fixed for defence evidence.
6. Accused side in his defence, firstly examined deputy Manager of HDFC Bank as DW1 regarding the difference in name of Payee in cheques. The witness turned hostile and stated that account was opened in name of Swapan Kumar Gosh and cheque should be issued in same name but if the customer is old and known then cheque can be sent for clearance after just seeing the identity proof. In the present case cheque Ex. CW1/3 was issued in the name S.K. Gosh.
7. Final arguments from complainant side heard on 26.11.2021. Counsel for complainant relied upon following judgements
1. Rohitbhai Jivanlal Patel vs State of Gujrat & Anr. Cr. Appeal No. 508 of 2019
2. Sheela Sharma vs Mahendra Pal Crl. L.P. 559/2015
3. Bir Singh vs Mukesh Kumar CA No. 230-231 of 2019 Counsel for accused relied upon following judgements
4. M/s Krishna Associates vs M/s Aashirwad Medicos CC. No. 3502/12
5. Sanjay Verma vs Gopal Halwai 2019(2) JCC 1470
6. Deepak Madhukar Wadekar vs Vinay Balkrishna Wadekar 2019(2) DCR 337
7. Gajender Sharma vs Sree Gokuldam Chit & Finanace Pvt. Ltd.
RAHU Digitally signed by RAHUL JAIN L JAIN Date: 2022.01.27 16:12:01 +05'30' 8. R.L Verma & Sons vs P.C Sharma 2019(2) DCR 655 9. Kamla Rai & Ors. Vs Texmaco Ltd. And Ors. Case file perused. POINTS FOR DETERMINATION: - 8.1 Whether the complainant has been able to establish ingredients of offence
punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
8.2 Final order.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. To bring home conviction for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the complainant is obliged to prove : -
(a) The cheque(s) was/were drawn/issued by the accused person(s) to the complainant on an account maintained by him/her/them/it with the bank for discharge, in whole or in part, of any debt or liability.
(b) The cheques(s) was/were presented to the bank within a period of three months or within period of its/their validity.
(c) The cheque(s) so presented for encashment was/were dishonoured.
(d) The payee/complainant of the cheque(s) issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque(s).
(e) The drawer of the cheque(s) failed to make the payment within 15
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days of receipt of afore-said Legal Demand Notice.
(f) The complaint was presented within 30 days after the expiry of
above 15 days.
UNDISPUTED/UNCONTROVERTED FACTS
10. At the outset, it is pertinent to mention herein that it is not in dispute that cheque in question belong to the accused, it bears his signatures, it was drawn on an account maintained by the accused with a bank, and cheque in question was dishonoured as alleged. So, there is no need of discussion qua said ingredients and same can be regarded as being duly proved on record and being non-controverted.
ISSUES FOR CONSIDERATION
10. In the present case, they are two issues- first one being whether Legal notice was sent at the correct address? And the second one being, whether there is any legal enforceable debt?
CONTENTIONS QUA LEGAL DEMAND NOTICE
10. Coming to the first issue, legal notice was addressed to the address L-69, Top Floor, Mahavir Enclave, New Delhi. Tracking report of the speed post shows that the item was "unclaimed". Now, Supreme Court has held that unclaimed can be deemed as refusal to accept service.
Reliance put upon the judgement of Hon'ble Supreme Court in:-
K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr on 29 September, 1999 1999 Supp (3) SCR 271 RAHU Digitally signed by RAHUL JAIN Date:
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The more important point to be decided in this case is whether the cause of action has arisen at all as the notice sent by the complainant to the accused was returned as `unclaimed.' The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) and (c) of the proviso to Section 138(1) of the Act. The said clauses are extracted below :
"(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."
On the part of the payee he has to make a demand by `giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such `giving' the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days `of the receipt' of the said notice. It is, therefore, clear that `giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address. In Black's Law Dictionary, `giving of notice' is distinguished from `receiving of the notice.' (vide page 621) "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person `receives' a notice when it is duly delivered to him or at the place of his business.
If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape-from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's `Interpretation of Statues' the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation." (vide page 99 of the 12th edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to `make a demand' by giving notice. The thrust in the clause is on the need to `make a-demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does.
It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [vide Harcharan Singh v. Smt. Shivrani and Ors., [1981] 2 SCC 535, and Jagdish Singh v. Natthu Singh, [1992] 1 SCC 647.] Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus : Digitally signed
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"27. Meaning of service by post. - Where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression `serve' or either of the expressions `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post"
No doubt Section 138 of the Act does not require that the notice should be given only by `post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address.
11.2 In the present case, the accused has disputed the receipt of notice by alleging that notice was sent to an incorrect address as the address to which legal notice is sent is non-existent. He has relied upon judgement of:-
Hon'ble High Court of Delhi in R.L Verma & Sons vs P.C. Sharma ( Supra )wherein it was held that " if demand notice is incorrectly addressed , no cause of action can arise.....
22. Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise.
He has also relied upon judgement of Delhi High Court in Gajender Sharma ( Supra) wherein it was held that there can be no deemed service on a non-existent address. 11.3 Counsel for accused has claimed that complainant who is admittedly a property dealer was a broker to a deal in which property was purchased by the accused from some persons at Mahavir Enclave in 2013. He states that he lives at the very same property bearing number L-64, Top Floor, Mahavir Enclave, New Delhi. Learned Counsel for the accused has RAHU Digitally signed by RAHUL JAIN L JAIN Date: 2022.01.27 16:13:04 +05'30' argued that the complainant in his cross examination has admitted that "there is no L-69 in the building and that the accused is residing in L-64 and not in L-69." 11.4 He has further argued that why Legal notice was sent to L-69 in 2016 when the complainant himself was the broker to the deal where the accused bought L-64 from some Mangli Dass in 2013. He has filed document Ex. CW1/D1 (Colly) (OSR) i.e. GPA, Power of Attorney, Will, Agreement to sell to substantiate the fact that complainant was broker to the deal of property number L-64. The complainant has admitted in his cross examination that he was the witness to the deal.
11.5 But first things first, there is a Loan Agreement Ex. CW1/1 (OSR) filed on record by the complainant dated 29/07/2013 which mentions the address of the accused as L- 69 , Top Floor , Mahavir Enclave , New Delhi. It is pertinent to mention here that the accused has just verbally denied the Loan Agreement during the notice framing u/s 251 by stating that he did not execute the agreement and did not sign the Loan Agreement. He has not produced any evidence in support of his statement. The onus of proof was upon the accused to prove that the Loan agreement was forged. The complainant in his cross examination was put through suggestions that Loan agreement was forged which were denied. 11.6 Further, it is settled law that a person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act."
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In C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007) 6 SCC 555, the Hon'ble Apex court has held;
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation... "
11.9 In the present case, summons were served upon the accused. Counsel for the accused has argued that summons sent through post were received back with the report "No such person" which proves that it is a non-existent address. But summons report is an authenticated report whereby summons are personally served. Thus, on basis of the report it can be presumed that summons were served on the correct address of the accused.
Also, the report on Bailable warrants clearly states that the accused has left the address at L-69 and moved to L-64 which clearly shows that the address is existent and the accused lived on that address previously.
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Hence, in light of the above facts, the burden was upon the accused to prove that the address was non-existent which he has failed to prove. 11.10 Most importantly, the accused himself in his statement under Section 313 Crpc has said in response to question number 3 that he came to know about the dishonourment after receiving the summons from the court. Thus, he himself has admitted that he had received the summons.
11.10 Based on the discussion above, it is now settled that address was existent and summons were served on the same address. Thus, in this case, since, the accused side has not made payment of cheque(s) amount in question within 15 days of the receipt of summons of this Court, therefore, in the light of above-said judgment and discussions, this Court is of the opinion that defence of the accused side that he has not received any legal demand notice is without any force and is hereby rejected. CONTENTIONS QUA CONSIDERATION 12.1 Submissions of both side considered. Before coming to the facts of the case, it would be beneficial to first lay down the law.
Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under: -
"Section 118. Presumption as 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, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under:-
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"Section 139 Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
In matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde" (2008) 4 SCC 54, Hon'ble Supreme Court of India has observed: -
"32. 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 record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
"34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : -
"17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by brining on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal"
(1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : -
"12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case including that of RAHUL Digitally signed by RAHUL JAIN JAIN Date: 2022.01.27 16:14:27 +05'30' the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : -
"26. 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. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof."
"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
12.3 So, precisely there is initial presumption of legally enforceable debt or RAHUL Digitally signed by RAHUL JAIN JAIN Date: 2022.01.27 16:14:48 +05'30' liability against the accused side, but same is rebuttable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can lead evidence in defence, even can rely on materials submitted by complainant and can rely upon circumstances also to show non-existence of consideration or it being improbable and need not adduce evidence of his own for the same.
12.4 The defence of the accused side considered in view of above-cited case laws. Now, coming to the second issue at hand that there was no legal enforceable debt the accused has first of all just verbally denied the Loan Agreement without adducing any evidence to prove that the agreement was forged and fabricated. The accused in order to prove that Loan agreement is forged argued during Final Arguments that the execution of Loan Agreement Ex. CW1/1 was not witnessed before Notary Public as date of signatures of the accused and witnesses and attestation by notary are different. He has substantiated his argument by relying upon judgements Smt. Kamla Rani and Ors vs Texmaco Ltd. AIR 2007 Delhi 147. But this is not a case where the Loan agreement in is issue. The signature of accused on one page is dated 15.08.2013 while on other page of Loan agreement is 15.08.2012 which creates a doubt over the intentions of the accused. The dates below the signatures of witnesses which were marked as Pt. A and Pt. B Ex. CW1/1 are 15/08/2013 which creates a doubt over the authenticity of the Loan agreement but for the sake of repetition it is stated that the Loan agreement is not in issue in the present case. He could have called handwriting expert to disprove his signatures on the Loan agreement which he didn't do. Even if it is accepted that there is discrepancy in the dates of attestation by notary and signatures of the accused and witnesses but that by itself does not rebut the presumption under RAHUL Digitally signed by RAHUL JAIN JAIN Date: 2022.01.27 16:15:12 +05'30' Section 139 NI Act and does not prove that the cheque was not issued for a legally enforceable debt. Rather the accused in his defence stated to have had financial transaction with the complainant with regard to some property deal and had issued the cheques. This all the more fructifies the presumption that the cheques were issued for a legally enforceable debt.
I have also heard the arguments and gone through the judgements filed by Accused in support of this argument. In light of the admitted signatures of the accused on the cheque, the onus was on the accused to prove that the signatures on the agreement are not his. He could have done the same by adducing expert evidence. In absences of the same, I have used my power under Section 73 Evidence Act to compare the signatures on the Loan Agreement Ex. CW1/1 with the admitted signatures on the cheque and found the signature to be same with the handwriting pattern to be similar. Now, it was upon the accused to discharge the burden of proving the Loan Agreement was forged which he failed to do so.
12.5 The accused further failed to produce any witness to substantiate his story that the cheques were given to the complainant as property dealer for bayana amount and registration of property no. L-64. Even the accused himself did not come to the witness box. Although it is settled law that the accused can raise his probable defence either by adducing evidence or by finding loopholes in the materials on record and it is not a necessity that accused should come in witness box. But in the present case accused has miserably failed to raise a probable defence. Further, he has even not filed police complaint regarding the misuse of his cheque which further weakens his story.
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12.6 As far as inconsistencies in the complainant evidence is concerned
regarding the fact of receipt of cheque i.e. in complainant affidavit it is stated that the first cheque was received at the time of execution of Loan agreement while second cheque was received one year after the Loan agreement while CW2 in his chief examination contradicted this by stating that both the cheques were received 2-3 days after the execution of Loan Agreement. Looking at the other proved facts in the case this seems to be a minor inconsistency as a person cannot be reasonably expected to remember everything and there might be some minor mistakes in the testimony which may not be fatal to the case of complainant.
12.7 Further, the accused contradicted his defence given at the time of notice u/s 251 Crpc twice. Firstly, during notice u/s 251 Crpc the accused had stated that he had made the payment of the property deal to one Mangli Dass through cash after complainant told him told him that Mangli Dass does not have bank account. But later during cross examination of the complainant he had put a suggestion to him that payment was made by the accused at the instance of the complainant through cheque to son and daughter in law of Mangli Dass. The relevant extract is reproduced for convenience "It is wrong to suggest that at my instance the accused paid Rs. 5 lacs each through cheque to Sh. Ajay Malik s/o Mangli Dass and Manju Malik, w/o Ajay Malik. Later on during the statement of accused u/s 313 he stated that cheques were given for the purposes of Bayana amount and registration while all along till now he had stated RAHUL Digitally signed by RAHUL JAIN JAIN 16:15:58 +05'30' Date: 2022.01.27 in Notice and also suggested in the cross examination of the complainant that cheque were issued for the purpose of payment to Mangli Dass for the property deal. 12.8 Now, the case of the accused is that he made the payment in cash to one Mangli Dass and the complainant misused his cheques. If that is the case, then it is quite unnatural that he didn't file any police complainant regarding the misuse of his cheques and also didn't issue stop payment instructions to his bank. FINAL CONCLUSION
13. So, all the ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record. The defence raised by accused side is not tenable/sustainable as per above discussions. FINAL ORDER
14. In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt qua accused. Accordingly accused namely Mr. Abhishek Roy Chaudhary stands convicted of the present cheque in question for offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
15. Copy of the Judgement be sent free of cost to the accused through email of Counsel of accused.
RAHUL Digitally signed
by RAHUL JAIN
JAIN Date: 2022.01.27
16:16:39 +05'30'
Announced in the Open Court through VC RAHUL JAIN
on January 27, 2022. M.M.-04/N.I.Act
Dwarka/Delhi 27.01.2022