Delhi District Court
Sharda Devi vs Rohtas Kumar on 29 August, 2024
IN THE COURT OF RISHABH KAPOOR: JUDICIAL
MAGISTRATE FIRST CLASS- 05, NORTH-WEST, ROHINI
COURTS: DELHI
Sharda Devi Vs. Rohtas Kumar
CC No. : 7830/2016
U/s : 138 Negotiable Instruments Act,1881
P.S. : Shalimar Bagh
JUDGMENT:
1. Criminal Case No. : 7830/2016
2. Date of institution of the case : 28.08.2014
3. Name of the complainant : Sharda Devi
4. Name and parentage of accused : Rohtas Kumar S/o Sh.
Mahadev Prasad
5. Offense complained or proved : 138 NI Act
6. Plea of the accused : Pleaded not guilty
7. Date on which order was reserved : 31.07.2024
8. Final order : Convicted
9. Date of final order : 29.08.2024
Digitally signed
RISHABH by RISHABH
KAPOOR
KAPOOR Date: 2024.08.29
16:59:48 +0530
1. Vide this judgment, this Court shall dispose off the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. The facts giving rise to the instant complaint case, as per the complainant, may be enumerated as hereafter: the complainant advanced a friendly loan of Rs. 4,90,000/- (Four Lacs Ninety Thousand) to the accused on account of his dire financial needs for a period of two months. The accused issued cheque bearing no. 250110 dated 26.06.2014 for an amount of Rs. 4,90,000/- drawn on State Bank of India, Mangolpuri Branch, Delhi, in favour of complainant in discharge of his loan liability. The complainant presented the said cheque with her Banker, but the same was dishonored due to 'Insufficiency of Funds' in the Bank Account of accused vide return memo dated 08.07.2014. Thereafter, the complainant sent legal demand notice to the accused, which was also replied by the accused vide reply dated 09.07.2014 denying her liability. Thus, the complainant was constrained to institute the present complaint case.
3. Upon appreciation of pre-summoning evidence affidavit, accused was summoned for an offence punishable under Section 138 of NI Act and notice under Section 251 of Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.) was served upon accused on 16.09.2017 to which he pleaded not guilty and claimed trial. The accused denied his liability towards complainant and stated that he had handed over the said blank signed cheque to complainant and her husband in September/October,2012 upon their requests as the they were in need of Rs. 30,000/--35,000/- for submitting EMD Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date:
2024.08.29 16:59:58 +0530 for quoting in a government tender. He also stated that he gave his blank signed cheque in question to the complainant and her husband as they were not sure about the shortfall in EMD amount and the cheque was not issued by him to complainant in discharge of any legal liability.
4. Thereafter, the permission was granted to accused to examine the complainant's witnesses as per Section 145 (2) N.I. Act.
5. During CE, the Complainant tendered her affidavit Ex. CW- 1/A in her examination-in-chief and relied upon the following documents which were duly exhibited and marked as Ex. CW-1/1 to Ex. CW-1/6, respectively i.e. cheque bearing no. 250110 dated 26.06.2014 for an amount of Rs. 4,90,000/- drawn on State Bank of India, Mangolpuri Branch, Delhi (cheque in question) which is Ex.CW1/1, Bank Returning Memo dated 08.07.2014 which is Ex.CW1/2, Legal demand notice which is Ex.CW1/3, postal receipt which is Ex.CW1/4, reply dated 09.07.2014 alongwith its covering envelope which are Ex. CW-1/5 and Ex.CW1/6, respectively .
6. The Complainant examined only one witness i.e. herself as CW-1 and she was duly cross examined at length by the Ld. Counsel for accused. CE was closed vide order dated 23.03.2023.
7. The accused was thereafter, examined U/s 281 r/w Sec 313 Cr.P.C. on 13.07.2023, wherein entire incriminating evidence was put to him. At this stage, he has stated that he was falsely implicated in the present case. The accused also led evidence in his defence and examined himself as DW-1.
Digitally signedRISHABH by RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:00:08 +0530
8. I have considered the rival submissions of the parties and perused the entire evidence led by the parties and the material available on record.
9. During the course of final arguments, Ld. Counsel for complainant argued that there exists legally enforceable liability in favour of the complainant on behalf of the accused. He further argued that the cheque in question (Ex.CW1/1) was issued to the complainant and the signatures have already been admitted by the accused. He further argued that upon presentation, the cheque has been dishonored and the same has been proved by the cheque return memo which is Ex.CW1/2. Further, he argued that the legal demand notice (Ex.CW1/3) was duly served upon the accused. He further argued that the complainant did not receive any payment after service of legal notice. Ld. Counsel for complainant submitted that all the ingredients of Section 138 NI Act are fulfilled and the accused should be convicted.
10. Per contra, Ld. Counsel for accused argued that the complainant has misused the cheque in question as same was never given to her by the accused in discharge of any legal liability. He further argued that the cheque in question was given by the accused to the complainant and her husband as they were in need of money for filing quotation in government tender. It is further argued that there was no advancement of friendly loan by the complainant in favour of accused. It is also argued that the legal demand notice sent by the complainant to the accused is also defective as same finds mention of a completely different cheque number and not the cheque in question. It is also argued that the complainant has also not filed her ITR Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:00:33 +0530 depicting the advancement of loan to the accused nor has proved her financial capabilities/sources of income, which makes the entire story of complainant doubtful. He further argued that the complainant has failed to establish her case and hence, the accused deserves to be acquitted.
11. In the backdrop of the foregoing factual score, this Court shall now proceed to examine the position of law governing the facts peculiar to the present case.
12. The following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of NI Act, which has also been observed by the Hon'ble Supreme Court of India in the matter of Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be 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;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) 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;
(iv) 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;
(v) 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 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; and Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date:
2024.08.29 17:00:43 +0530
(vi) 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"
The above mentioned proposition of law was reiterated by the Hon'ble Supreme Court in the matter of Aparna A. Shah v M/s Sheth Developers P.Ltd & Anr. (2013)8 SCC 71.
13. It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offences under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act.
Section 118 of the N.I Act provides:
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary 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".
14. Once the foundational facts that the cheques in question bears the signatures of the accused and the same has been drawn on account maintained by him are established, a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration by virtue Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:00:51 +0530 of Section 118(a) r/w Section 139 of NI Act. It is a mandatory presumption, though the accused is entitled to rebut the said presumption.
15. The principles pertaining to the presumptions and the onus of proof were also summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
16. As discussed above, it is clear that the accused need not discharge burden of proof beyond the shadow of reasonable doubt rather needs to prove his defence upon preponderance of probabilities. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore, the prosecution cannot stand or the accused can give his version of the story and say that on the basis of his version, the story of the complainant cannot be Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:01:22 +0530 believed. In the first situation, the accused has nothing to do except to point inherent inconsistencies in the version of the complainant.
17. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above, if an accepted signed cheque has been produced the complainant, then there cannot be any inherent lacuna in the existence of the liability. Recently, the Hon'ble Supreme Court in Kalamani Tex & Anr. v. P. Balasubramanian (2021 SCC Online SC 75) held as follows:
14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
But then, definitely, accused can create some loopholes in the story of the complainant. Accused can discharge his burden by demonstrating the preponderance of probabilities.
18. Further, it is a trite law that while deciding a complaint U/s 138 NI Act, the Court has to firstly see, whether the Complainant has successfully established the ingredients constituting the offence under the said section or not. The ingredients of Section 138 NI Act which are required to be established by the Complainant have been set out by the Hon'ble Supreme Court in Jugesh Sehgal (Supra). Once these ingredients are established by the Complainant and the Accused admits the issuance of the cheque/his signatures, the presumption U/s 118 (a) and 139 of the NI Act arises.
19. Having discussed the essential ingredients for constituting the offence U/s 138 N.I. Act, it would be apposite to discuss the Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:01:44 +0530 evidences led by the parties prior to appreciation of merits of the contentions advanced on behalf of the parties.
20. As stated earlier, the complainant examined herself as CW-1. The complainant namely Sharda Devi was examined as CW-1 and adopted the pre-summoning evidence during her examination-in- chief. During her cross-examination, she stated of knowing accused for more than 7 years prior to year 2014. She admitted that no written agreement regarding the loan was executed with the accused nor she took any receipt from the accused at the time of advancement of the loan. She admitted that she was not working prior to year 2014 and that she was maintaining two bank accounts in year 2014. She further stated that amount of Rs.5 Lacs was withdrawn by her from her bank account at Union Bank of India, Mangolpuri in year 2014. She deposed that her husband is a contractor who deposited the amount of Rs.5 Lacs in her bank account. She admitted that she does not file income tax returns. She produced the copy of her bank statement Ex.CW1/D1 showing withdrawal of Rs. 5 lacs from her bank account on 24.04.2014. She deposed that the cheque was given by the accused at the time of advancement of loan. She could not state whether it was a blank signed cheque or not. She deposed that accused did not mention about his specific requirement at the time of taking the loan. She deposed that the loan was advanced to the accused on roadside in the vehicle. She could not state about the number of vehicle of accused. She admitted that apart from herself and accused, no other person was present at the time of advancement of loan to the accused. She admitted that accused is knowing her and her husband for the same time period but she could not state as to why Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:01:55 +0530 the accused did not demand the loan from her husband. She stated that the loan was advanced to accused in cash as he raised immediate requirement of money. She deposed that the cheque was given by accused to her on 24.04.2014 when she advanced the loan to him. She stated that the accused took loan for one month only. She could not state about the name of the bank on which the cheque of accused was drawn. She admitted that the cheque was not drawn on Bank of India. She was also shown the cheque Ex.CW1/1 during her examination and admitted that it was the same cheque which which accused has given to her on 26.06.2014. she denied that the cheque in question was taken by her from accused in blank signed state as she and her husband were requiring the money. She also denied that that accused is not having any legal liability towards her.
21. Whereas, accused Rohtas Kumar examined herself as DW-1 in his defence evidence and deposed that his sister was the friend of complainant's daughter due to which the complainant was having visiting terms at his house and in year, 2012, the complainant approached him for friendly loan as she was requiring money in connection with a tender. He further deposed that it was informed to complainant that cash was not readily available with him and he handed over a blank signed cheque to the complainant with understanding that amount on same as per the requirement may be filled. The complainant did not present the cheque for encashment even after lapse of 5-6 months and when he asked about the reason for the same, he was informed by complainant that the money was no more required by her and she would be returning the cheque to him but the complainant kept on delaying the same on one pretext or the Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:02:07 +0530 other. He deposed that in Year, 2014, he received the legal demand notice from complainant, after which he acquired knowledge that his blank signed cheque was misused by the complainant. He deposed that he does not have any legal liability towards complainant nor he has availed the friendly loan of Rs. 4,90,000/-, as alleged by the complainant. During his cross-examination, the accused denied that he has availed friendly loan from the complainant as he was in dire need of money. He denied that the repayment of the loan amount was not made by him despite receiving legal notice. He volunteered that no loan was availed by him. He deposed that he never filed any police complaint against the complainant regarding the misuse of his cheque. He denied of having any legal liability towards the complainant.
22. Having discussed the position of law on the subject and the evidences led by the parties, now let us advert ourselves to the merits of the contentions advanced on behalf of parties.
23. Coming to the first ingredient of the offence, which is that the drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability, it is stated by the complainant that the complainant had extended friendly loan of Rs. 4,90,000/- to the accused who had issued the cheque in question to the complainant for the discharge of his legally recoverable liability, however, upon presentation, the cheque in question got dishonored.
24. Upon analyzing the statements of the accused recorded u/s 251 Cr.P.C, Section 313 Cr.P.C. and in his testimony as defence Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:02:44 +0530 witness/DW-1, what comes out is that the accused has admitted the cheque to be issued by him after signing upon the same.
Admittedly, the cheque in question in the present case has been drawn from the account of accused Rohtas Kumar. In his defence to notice u/s 251 Cr.PC., in his testimony as DW-1 a as well as statement u/s 313 Cr.PC., the accused has not disputed the factum of signing the cheque in question and has rather stated that he gave the cheque in question to the complainant and her husband as they were in need for money for filling the governing tender. It is also stated by the accused that considering his relationship with the complainant and her husband, he issued the blank signed cheque to them with an understanding that an amount as per the shortfall may be filled by them but it shall not increase Rs. 30,000/- to Rs. 35,000/-. Therefore, it can be fairly stated that the cheque in question has been drawn from the account of the accused.
25. In view of the position of law discussed in Basalingappa vs. Mudibasappa (Supra), what comes to the fore is that once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. The admission of the accused of his signatures on the cheque in question, the factum of issuance of the cheque and in view of the fact that the cheque in question has been drawn from the account of the accused, a statutory presumption is bound to be raised in favour of the complainant that the cheque in question was issued by the accused for the discharge of a legally recoverable debt or liability.
26. Once the statutory presumption has been raised in favour of the complainant, the burden of proof now lies upon the accused to rebut Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:03:34 +0530 the statutory presumption as per the reverse onus of proof that now shifts upon the accused.
27. The defence of the accused has been stated by him in his examination in chief as defence witness DW-1 wherein it has been stated by him that he had not taken the friendly loan from the complainant and that rather the complainant approached him for advancement of friendly loan as she was requiring the money in connection with tender process and considering the such requirement of the complainant, he handed over a blank signed cheque to the complainant.
28. On account of a statutory presumption raised in favour of the complainant, the onus now falls upon the accused to prove his defence and the presumption cannot be rebutted simply by placing reliance on oral averments. It is necessary for the accused to substantiate the defence taken by him either by bringing forth relevant evidence as proof or by pointing out to such inconsistencies or contradictions in the case of the complainant which would overthrow the complainant's case and make the defence of the accused probable.
29. In support of the defence taken by him, the accused has examined himself as defence witness DW-1. Even though, in the defence raised by the accused in notice u/s 251 Cr.PC, he disclosed for the first time that he had handed over the blank signed cheque in question to the complainant and her husband in September/October, 2012, when they came to his house with a request for some money of around Rs. 30,000/- to Rs. 35,000/- for filling up the government tender. Whereas, during his statement u/s 313 Cr.PC, the accused Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:03:44 +0530 again stated that he had given the blank signed cheque in question to the complainant to meet the shortfall of money in procuring the tender for construction/repair in RBI. The stance of accused during the course of his testimony as DW-1, however, changed and he disclosed that the cheque in question was given by him to the complainant towards the advancement of friendly loan as the money was required by the complainant for filling the government tender. Pertinently, the fact that the cheque in question was issued by the accused in favour of the complainant towards the advancement of the friendly loan for the first time was disclosed by the accused during his examination as DW-1 and prior to that, the stance of accused was that the cheque was given to the complainant and her husband only for meeting out the shortfall of money faced by them in the tender process and no mention of the fact that it was a friendly loan, ever came in the statements of complainant during the stage of framing notice U/s 251 Cr.PC and while his statement U/s 313 Cr.PC.
30. The defence raised by the accused that he had handed over the cheque in question being blank signed cheque to the complainant for meeting the shortfall of money required in government tender process has not been duly established by him. It is unexplainable as to why the accused did not make any police complaint against the complainant and her husband when they failed to return his blank signed cheque despite the repeated requests stated to be made by him. The careful perusal of record also reflects that in reply to legal demand notice which is Ex. CW-1/5, the accused has not made any assertion that the cheque in question was given by him to the complainant or her husband towards friendly loan or a financial help in meeting out the Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:03:56 +0530 shortfall of money faced by them in a government tender process rather in such reply, the accused has only made a simple denial regarding the issuance of any cheque in favour of the complainant. It is also not explainable as to what prevented the accused in filing the police complaint against the complainant and her husband regarding the alleged misuse of his blank signed cheque by them despite acquiring knowledge regarding the dishonor of same vide legal demand notice Ex. CW-1/3. The accused has failed to show any inherent lacunae or inconsistencies in the testimony of complainant/CW-1 and has also not led any cogent and convincing evidence establishing the defence so raised by him. These facts further fortify the inference that the cheque in question was issued by accused in favour of the complainant in discharge of his legal liability.
31. Going by the above discussion, the accused has failed to prove his defence that the cheque in question was given by him to the complainant for advancement of friendly loan/financial help to the complainant/her husband and that he did not owe any liability towards the complainant.
32. It is also argued that the complainant has not furnished any record with respect to either the advancement of the money to the accused or the source of the generation of the money by the complainant.
The burden was upon the accused to rebut the statutory presumption raised in favour of the complainant as per section 118 and section 139 of the NI Act and the burden of the accused cannot be thrusted upon the complainant by bringing forth such an argument Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date:
2024.08.29 that the complainant has himself not placed on record any documentary evidence to prove his case. It was only in a circumstance where the accused would have been able to discharge his burden of proof and rebut the statutory presumption taken in favour of the complainant, that the burden would have been shifted upon the complainant. In the instant case, the accused has failed to discharge his initial onus of proof either by establishment of his own defence or by creating a doubt in the mind of the court upon the complainant's case and hence, the accused has failed to rebut the presumption taken in favour of the complainant.
33. Besides this, the complainant examined as CW-1 has herself stated in her cross examination that the money given to the accused towards the friendly loan in question was arranged by her husband from his income sources and same was given to the accused by the complainant after withdrawing it from her bank account maintained at Union Bank of India, Mangolpuri Branch. The complainant has also placed on record the copy of her bank statement dated 24.04.2014 reflecting the withdrawal of Rs. 5 lacs from her bank account and such record of the contemporaneous date of the advancement of alleged loan sufficiently establishes that the complainant was having the amount of loan in question in her bank account during the relevant time. There is nothing on record that would lead the court to entertain a doubt upon the financial capacity of the complainant.
34. It has also been stated by Ld. Counsel for accused that the complainant has not disclosed her actual income and loan amount in her Income Tax Returns and thus, as per the provisions of the Income Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:04:18 +0530 Tax Act, due to non-disclosure of the loan amount in the ITRs, the case of the complainant has failed.
As far as the contention of the Ld. Counsel of the accused is concerned, it is seen that it has been stated by complainant CW-1 in her cross- examination that she does not file income tax returns. Non- disclosure of actual income or non-mentioning in the ITR of any advances given may entail consequences under the Income Tax Act but the same does not affect the case of the complainant. The liability of the accused under section 138 of the N.I. Act cannot be done away with simply because the complainant did not mention her actual income or the loan amount in her ITR.
35. Considering the overall facts and circumstances, the accused has failed to discharge the burden of proof that was placed upon him for showing that the cheque in question was not issued for the discharge of a legally recoverable debt or liability that was owed to the complainant. The accused has therefore, failed to rebut the presumption taken in favour of the complainant. To the contrary, the complainant has been able to successfully prove that the cheque in question was issued by the accused for the discharge of a legally recoverable debt that was owed by the accused to the complainant. Hence, the complainant has been able to successfully prove the first ingredient of the offence u/s 138 NI Act.
36. The second ingredient of the offence is that the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank.
Digitally signed byRISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:04:41 +0530
37. The cheque in question upon presentation in the bank was dishonored on 08.07.2014. A perusal of Ex.CW1/2 shows that the cheque in question, on being presented in the bank was returned dishonored due to "Funds insufficient".
38. Thus, in the opinion of the court, the second ingredient of the offence is also met in the present case.
39. As far as the third ingredient of the offence is concerned, which is that the drawer of such cheque fails to make the payment of the cheque amount within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money. The legal demand notice, the postal receipt, and reply given by accused, which are Ex. CW1/3 to Ex. CW1/5, respectively are present on record.
40. The accused has though not disputed about the receipt of legal demand notice Ex. CW-1/3 and sending its reply Ex. CW-1/5 by him but the contention so raised on behalf of accused here is that in legal demand notice Ex. CW-1/3, the complainant has mentioned the cheque number wrongly as cheque no. 259110 dated 26.06.2014 drawn on Union Bank of India which is not the cheque in question and in view of the aforesaid cryptic demand for return of money so raised by the complainant, the essential ingredients of Section 138 N.I. Act cannot be said to be established in the present case. Pertinently, the mere perusal of legal demand notice Ex. CW-1/3 suggests that in para no. 1 of the said legal demand notice, the complainant has correctly mentioned about the details of the cheque in question including the date and the name of the bank on which it was drawn. However, it appears that in the para no. 3 and last para of Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:04:53 +0530 said legal demand notice, some particulars including the cheque number and the name of the bank seems to be wrongly mentioned. In order to appreciate the contentions raised on behalf of accused that the legal demand notice is cryptic in nature and hence, on such ground, the accused may be acquitted, it should be important to appreciate the fact that throughout the course of trial, the line of defence of accused has remained similar and he has denied of having issued the cheque in question towards the discharge of his loan liability in favour of the complainant and rather raised the stand that the cheque in question was given by him to the complainant and her husband as a friendly loan/helpful gesture for meeting out the shortfall in requirement of money in filling up the government tender. The case of accused is not that due to the false or the cryptic legal demand notice he has been completely misled by the complainant and rather the overall perusal of the aforesaid legal demand notice reflects that even though there was some variations only in one of the paragraph of the said notice but from the overall reading of the said notice, the accused could sufficiently understand about the details of the cheque in question which is related to the present case and hence, no prejudice can be said to have been caused to the accused due to such variations in the legal demand notice. The accused has made an evasive denial of his legal liability towards the complainant in reply to the said legal demand notice which is Ex. CE-1/5 and such evasive denials of the accused are deemed admissions in the eyes of law. The careful perusal of the legal demand notice, postal receipts and reply sent by complainant, sufficiently establishes that despite delivery of the legal notice, the accused had failed to make the payment to the Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.08.29 17:05:35 +0530 complainant that he was liable to pay, within 15 days from the date of receipt of notice.
41. Hence, the third ingredient of the offence u/s 138 N. I. Act has also been proved by the complainant.
42. Having considered the entire evidence, this court is of considered opinion that the complainant has successfully proved all the essential ingredients of Sec.138 N.I. Act. Accordingly, the accused Rohtas Kumar is held guilty for committing the offence punishable u/s 138 N.I. Act. He is hereby convicted for the offence u/s 138 N.I. Act.
43. Let he be heard on the point of sentence separately.
Digitally signed by
RISHABH RISHABH KAPOOR
Announced in the open Court KAPOOR Date: 2024.08.29
17:05:43 +0530
On 29th Day of August, 2024 (Rishabh Kapoor)
JMFC-05 North West District
Rohini Courts, Delhi