Delhi District Court
Op And Sons Traders Pvt Ltd vs Maa Sushwani Textile on 3 October, 2023
IN THE COURT OF MS. KAVITA BIST: MM (N.I.ACT)
DIGITAL COURT / EAST DISTRICT, KKD COURTS: NEW
DELHI
OP and Sons Traders Private Limited Vs. Maa Sushwani Textile
CC No. 668/2021
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : 668/2021
2. Name of the Complainant : OP and Sons Traders Private
Limited through its director
Naresh Kumar Aggarwal
Office at: IX/7393, Guru Govind
Singh Gali, Gandhi Nagar, East
Delhi110031
3. Name of the accused, : Mr. Hansraj Surana proprietor of
parentage & residential M/s Maa Sushwani Textile
address Office at: Shop No. 107, First
Floor, Tiwari Market, Fancy
Bazaar, Guwahati, Assam
785621.
4. Offence complained of or : U/s 138 Negotiable Instruments
proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial.
6. Final Judgement / order : Convicted
7. Date of Judgement / order : 03.10.2023
Date of Institution : 19.03.2021
Date of Reserving Judgement / Order : 15.09.2023
Date of Pronouncement of Judgement / Order : 03.10.2023.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 1/21
JUDGEMENT
1.) By way of the present Judgement, this court shall dispose off the present complaint filed by OP and Sons Traders Private Limited (herein after referred to as 'Complainant') against Maa Sushwani Textile (herein after referred to as 'accused') u/s 138 Negotiable Instruments Act, 1881 r/w section 142 Negotiable Instruments Act, 1881 (herein after referred to as "N.I. Act" in short).
Factual Matrix
2.) The brief facts as alleged by the Complainant in the complaint are that the complainant is a private limited company incorporated under the Companies Act and doing the business of clothes and the present complaint is filed by Sh. Naresh Aggarwal, director of the complainant who is duly authorized by the company through board of resolution, and that the accused had purchased cloth goods from the complainant time to time on credit basis. The accused has made part payment against goods supplied to him leaving an outstanding balance of Rs. 20,41,142/ and in discharge of his legal liability accused had issued 4 cheques bearing no. 144129, 144130, 144131 and 144132 dated 15.12.2020, 17.12.2020, 19.12.2020 and 22.12.2020 amounting to Rs. 1 lakh each respectively drawn on Punjab National Bank Guwahati Asam as part payment of the abovesaid liability.
When the Complainant presented the said cheques, (herein after referred to as 'cheques in question') through his banker ICICI Bank, Gandhi Nagar branch, the same were returned unpaid by the banker of the accused vide all returning memos dated 28.12.2020 with the remarks "funds insufficient".
The Complainant thereafter issued a legal demand notice on 12.01.2021 through Counsel calling upon the accused to pay the said cheques amount within a CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 2/21 period of 15 days from receipt thereof. The said notice was duly served upon the accused and the accused failed to pay the aforesaid cheque amount within the statutory period.
Hence, the present complaint u/s 138 N.I.Act was filed on 19.03.2021 by the complainant, praying for the accused to be summoned, tried and punished for commission of the offence u/s 138 N.I.Act. The Complainant has averred that the present complaint is within the period of limitation and fall within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3.) Presummoning evidence of the complainant: To prove primafacie case, the complainant led presummoning evidence by way of affidavit, exhibit CW1/A, however, as the court was working digitally at that time so the tendering was dispensed with.
4.) Documentary Evidence of the complainant: To prove his primafacie case, the complainant has relied upon the following documents:
a.) Board resolution of complainant company is exhibited as Ex. CW1/1.
b.) Original cheques are exhibited as Ex.CW1/2, Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5.
c.) Original returning memos dated 28.12.2020 are exhibited as Ex. CW1/6, Ex. CW1/7, Ex. CW1/8 and Ex. CW1/9.
d.) Legal demand notice is exhibited as Ex. CW1/10.
e.) Speed postal receipts are exhibited as Ex. CW1/11 and Ex.
CW1/12.
f.) Envelopes are exhibited as Ex. CW1/13 and Ex. CW1/14.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 3/21
g.) Whatsapp screen shot of service of legal demand notice is
exhibited as Ex. CW1/15.
5.) After pursuing the complaint and hearing the argument of the Complainant on
the point of summoning of the accused, primafacie it appeared that the offence u/s 138 N.I.Act has been committed. Hence, cognizance of the offence u/s 138 N.I.Act was taken on 15.04.2021.
6.) Framing of notice and plea of defence: Notice u/s 251 Cr.P.C was framed against the accused on 26.11.2021 to which he pleaded not guilty and claimed trial.
The plea of defence of the accused was recorded where he admitted his signature on the cheques in question, however, he had stated that the cheques in question were given blank signed cheques as security to the complainant as he used to purchase garments from the complainant. He further stated that he had made all the payments towards the garments supplied to him by the complainant and he does not have any liability towards the complainant and the complainant has misused the cheques in question and filed the false and fabricated statement of account/ledger in the present case and he has also stated that he had not filled the body of cheques in question. He further stated that he did not receive legal demand notice issued by the complainant.
7.) Evidence of the complainant: After the framing of notice, application u/s 145(2) N.I. Act was allowed orally by the Ld. Predecessor and hence, the case was tried as a summons case and accused was granted permission to cross examine the complainant. Thereafter, the complainant was examined as CW1, adopting the pre summoning evidence as postsummoning evidence and was cross examined and discharged. No other witnesses were examined by the complainant. Thereafter, complainant evidence was closed, and the matter was put up for statement of accused u/s 313 Cr.P.C r/w Section 281 Cr.P.C.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 4/218.) It is pertinent to mention that the present case is connected with another matter i.e CC NI ACT 684/2021 pending before this court and between the same parties arising out of similar transactions but instituted on the basis of different cheques and legal demand notices. In both matters the trial was conducted simulatneously, cross examination of the complainant was also conducted commonly and placed in each file. However, the document Ex. CW1/2 was placed in the another matter bearing CC No. 684/2021 to be referred in this matter also.
9.) Statement of the accused: Statement of the accused was recorded u/s 313 Cr.P.C r/w Sections 281 Cr.P.C on 20.04.2023, wherein all the incriminating circumstances appearing in evidence against the accused were put to him to which, he again reiterated that there were business transactions between the complainant and him, however, the cheques in question were given as a blank signed security cheques to the complainant which have been misused by the complainant against him in the present case and all the due payments had already been paid by him to the complainant. He further submits that he did not receive any legal notice issued by the complainant and denied the liability towards the cheques in question. The accused also stated that he wants to lead defence evidence and the present case is a false and fabricated case.
10.) Defence evidence: The accused did not lead defence evidence and neither examined himself nor examined any other witnesses. Thereafter, defence evidence was closed, and the matter was put up for final arguments.
11.) Final Arguments: Final arguments were advanced by both sides. I have heard the submission of Ld. Counsel for the complainant as well as the accused. I have also perused the record.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 5/2112.) Before deciding the present complaint case u/s 138 of N.I. Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of complainant.
a.) That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
b.) That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
c.) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
d.) That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
e.) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of the receipt of the said notice;
The aforesaid legal requirements are cumulative in nature, i.e only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence u/s 138 of N.I Act.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 6/21The provision of section 138 N.I. Act is buttressed by section 139 and section 118(a) of the N.I. Act. Section 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Section 118(a) of the Act provides interalia that the court shall presume, until the contrary is proved, that every Negotiable Instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
13.) It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e an accused is presumed to be innocence unless proved guilty. Thus, normally the initial burden to prove is on the complainant/prosecution to prove the guilt of the accused. Also, the standard of prove is beyond reasonable doubt. However, in offences u/s 138 of the N.I Act, there is a reverse onus clause contained in section 118(a) and section 139 of the N.I Act. The presumption u/s 139 and section 118(a) of the N.I Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall presume" used. However, the said presumptions are rebuttable in nature, i.e it is open for the defence to disprove the same by establishing facts to the contrary.
In the case of Hiten P. Dayal Vs. Bratindranath Bannerjee (2001) 6 SCC 16, the Hon'ble Supreme Court had occasion to examine the confines of the presumptions u/s 139 of the Act wherein, it held as follows:
"because both section 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs. CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 7/21 A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The obligation on the prosecution may be discharged with the help of presumptions of law or facts unless the accused adduces the evidence showing the reasonable possibility of the non existence of the presumed fact. Therefore, the rebuttal does not have to be conclusive establish but such evidence must be adduced before the court in support of the defence that court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of 'prudent man'"
14.) It is a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption u/s 118(a) r/w section 139 of the N.I Act is preponderance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences. At this point, the Hon'ble Supreme Court in M.S Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 has interalia held the following:
"The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from materials on record but also by reference to the circumstances upon which he relies."CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 8/21
15.) It is not always mandatory for the accused to examine its own witness in order to rebut the said statutory presumption. At this point, reliance may be placed on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325, wherein the Hon'ble Court has categorically held the following:
"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. As accused has a constitutional right to remain silent. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
16.) With regard to the factors taken into account for rebutting the presumption u/s 139 r/w Section 118(a) of the Act, the Judgment of Hon'ble Delhi High Court in V.S Yadav Vs. Reena, 172 (2010) DLT 561, assumes importance, wherein, it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised u/s 139 of N.I Act. The accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
17.) Now, I shall proceed with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredients in question or not: a.) "That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 9/21 for the discharge, in whole or in part, of any legally enforceable debt or other liability."
17.1) This condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused in his notice of accusation u/s 251 Cr.P.C has admitted his signature on the cheques in question. Subsequently, in his statement u/s 313 r/w Section 281 of Cr.P.C admitted his signature on the cheques in question. Further, the cheques have been drawn on the account of accused. This leads to drawing of an inference u/s 139 r/w section 118 of the Act, that the cheques were issued in discharge of a legally recoverable debt of other liability.
17.2) The presumption, having been raised against the accused, it falls upon him to rebut it. The accused has taken a defence that the cheques in question were given blank signed cheques as security to the complainant as he used to purchase garments from the complainant. He further stated that he had made all the payments towards the garments supplied to him by the complainant and he does not have any liability towards the complainant as alleged by the complainant in the present case. The accused has cross examined CW1.
17.3) The standard of proof for rebuttal is on preponderance of probabilities. As held by the Hon'ble Supreme Court in decision as K.N Beena Vs. Muniyappan and Anr. (2001) 8 SCC 458, in order to rebut the presumption, mere denial by the accused will not suffice. The accused must prove by leading cogent evidence that there was no debt or liability.
17.4) Major defence led by the Ld. Counsel for accused is that the cheques in question were given as a security as the accused used to purchase garments from the complainant and he had made all the payments towards the garments supplied to him and he has not any liability towards the complainant and the complainant has misused CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 10/21 the present cheques by filing false and fabricated ledger in the present case and also he has not filled the body of the cheques in question. In the present case, the onus to prove that accused has not issued the cheques in question for any legal liability in favour of the complainant primarily lied on the accused. Section 103 of Indian Evidence Act, 1872, enunciates that the person who asserts a fact must prove the same unless the law otherwise provides.
Now, I shall deal with all the defences separately.
The present cheques in question have been issued as security.
A contention advanced by the defence which deserved scrutiny is that the cheques in question were given as a security cheque as the accused used to purchase garments from the complainant. Even if it is assumed that the cheques in question were issued as security for purchasing garments from the complainant, by this fact alone, the presumption u/s 139 N.I Act can not be disloged. The law is settled on the point of security or advance cheque. The Hon'ble High Court of Delhi in the case of Suresh Chandra Goel Vs. Amit Singhal (2015) SCC Online DEL 6459 has observed that:
"Section 138 of N.I Act does not distinguished between a cheque issued by the debtor in discharge of his existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract section 138 of N.I Act in case of its dishonor."CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 11/21
The Hon'ble Supreme court of India in Sripati Singh (D) Vs. State of Jharkhand 28.10.2021 held that:
"A cheque issued as a security pursuant to a financial transaction can not be considered as a worthless piece of paper under every circumstance. Security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledge to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advance and borrower agrees to repay the amount in a specified time frame and issued a cheque as security to secure such repayment; if the loan amount is not repay in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplate u/s 138 and the other provisions of N.I Act would flow."
Hence, mere averment that the cheques in question were given as security in the absence of any cogent evidence is not sufficient to rebut the statutory presumption raised against the accused. Therefore, in the view of the above judgments the defence taken by the accused that the cheques in question were given as a security has no force.
The body of the cheques in question has not been filled by the accused.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 12/21The accused has stated in his notice of accusation that the cheques in question were given as blank signed cheques and the other particulars were not filled by him, hence, there is a material alteration in the cheques in question. So far as the defence of issuance of blank signed cheque is concerned, the same is untenable, considering the case of "Bir Singh Vs. Mukesh Kumar, 2019 (4) SCC 197 wherein the Hon'ble Supreme Court" observed and held:
"A meaningful reading of the provision of the Negotiable Instruments Act including, in particular, section 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. It is cheque is otherwise valid, the penal provisions of section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
It is also pertinent to refer Oriental Bank of Commerce Vs. Prabodh Kumar Tewari Crl. A.No. 1260/2022, wherein the Hon'ble Supreme Court held:
"For such a determination, the fact that the details of the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises of the signing CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 13/21 of the cheque can not be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled by drawer but by another person, this is not relevant to the defence whether cheque was issued towards payment of a debt or in discharge of a liability."
In this context, it is necessary to take note of the judgment of Hon'ble Delhi High Court in Ravi Chopra Vs. State and Anr. (2008) 102 DRJ 147, wherein the Hon'ble Court held:
" A collective reading of the abovesaid provision shows that even under the scheme of the N.I. Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up as a subsequent point in time and presented for payment by the drawee. There is no provision in the N.I. Act which either defines the difference in hand writing or the ink pertaining to the material particulars filled up in comparison with the signatures thereon as constituting a 'material alteration' for the purposes of section 87 N.I. Act. What however, is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore, as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of section 87 N.I. Act."CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 14/21
Therefore, the plea that the details of the cheques in question were not filled by the accused is untenable in light of the above mentioned judgments.
All the payments had been made by the accused The accused has stated in his notice of accusation that he had made all the payments towards the garments supplied to him by the complainant and as such he does not have any liability towards the complainant.
It is important to mention here that the accused has admitted in his statement recorded u/s 313 Cr.P.C r/w 281 that there were business transactions between the complainant and the accused so as far as the business relation between the complainant and accused is related, the same has been duly admitted by the accused and he has also admitted that he used to purchase garments from the complainant, however, he has stated that he had made all the payments to the complainant. As far as his defence is concerned regarding the payment to the complainant, the accused has neither produced any ledger/bank account statement nor any witness has been examined by the accused to support his contentions. It is submitted by the accused that complainant has failed to show how and when liability of the accused accrued and complainant has even failed to show whether any material was supplied to the accused and whether the accused received any material and complainant has failed to show the exact bill amounts and complainant has also failed to show any thing in support of the liability of the accused. Complainant in his examination in chief has stated that he has not filed the invoices of the transaction and he has also stated that the goods were supplied to the accused through the transporter, however, he has not placed on record the copies of bilty. On this aspect, it is important to draw attention on the judgment of Hon'ble Supreme Court of India in D.K. Chandel Vs. M/s Wockhardt Ltd. and Anr, Criminal Appeal No. 132 of 2020, wherein the CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 15/21 Hon'ble Court held that production of the account books, cash books may be relevant in the civil court; but may not be so in the criminal case filed u/s 138 of N.I. Act. In view of the abovesaid judgment the contention of the accused that the complainant has not filed invoices issued to the accused, that whether material was supplied to the accused are all far fetched as the present case pertains to dishonour of cheque and not recovery of money in a civil suit or claim for damages. If this is the defence of the accused, then accused should have led some cogent evidence to show that the complainant presented the cheques when there was no outstanding liability or when the complainant fails to supply the goods to the accused. Even from the cross examination of CW1, nothing substantive has come which supports the defence of accused. It is also pertinent to mention that the accused has not asked the complainant to return his cheques when all the payments were done by the accused neither any complaint was filed against the complainant regarding the same and this conduct of the accused does not seem prudent from the sight of a reasonable men.
Therefore, the defence taken by the accused that he had made all the payment is a bare averment unsubstantiated by any cogent evidence.
The ledger account filed by the complainant is forged and fabricated The accused in his notice of accusation has stated that the ledger account Ex. CW1/2 in CC No. 684/2021 is false and fabricated. The ledger filed by the complainant in the connected case arising out of the same transaction is apparently a computer generated copy and is duly supported with certificate of 65B of Evidence Act. The ledger account filed by the complainant maintained in the ordinary course of business dealing with the accused to show the liability of the accused is clearly showing all the transactions between the complainant and the accused from 01.04.2018 till 31.03.2021. By merely stating that the ledger is false and fabricated does not CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 16/21 discharge the accused from the burden to rebut the presumption in favour of accused as the same can be rebutted by leading cogent evidence, however, the accused has failed to lead any evidence which shows that the ledger filed by the complainant is false and fabricated.
Therefore, in view of the fact that the ledger filed by the complainant is duly supported with certificate 65B and in absence of any evidence by accused which shows that the same is false and fabricated, the defence taken by the accused is a bare averment.
The upshot of the above discussion is that the said ingredient remains fulfilled in favour of the complainant. Hence, considering the materials available on record, I am of the considered view that the accused has failed to rebut the presumption of legally enforceable debt or liability in favour of the complainant.
b.) "That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;"
17.5) This requirement is satisfied on a perusal of the cheques in question Ex. CW1/2, Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5 dated 22.12.2020, 19.12.2020, 17.12.2020 and 15.12.2020 and returning memos Ex. CW1/6, Ex. CW1/7, Ex. CW1/8 and Ex. CW1/9 which bears the date of 28.12.2020 respectively i.e within a period of three months from the date of issuance of cheque in question. The defence has led no evidence to controvert the same and hence, the ingredient stands fulfilled as against the accused person.
c.) "That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is insufficient to honor CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 17/21 the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank."
17.6) Section 146 of N.I Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presumed the fact of dishonor of such cheque, unless and until such fact is disproved. The bank returning memos Ex. CW1/6, Ex. CW1/7, Ex. CW1/8 and Ex. CW1/9 are on record states that the cheques in question have been returned dishonored for the reason "Funds Insufficient." The defence has led no evidence to controvert the same and the accused has also admitted the returning memos in his notice of accusation u/s 251 Cr.P.C and hence, this ingredient is also fulfilled as against the accused.
d.) "That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid"
17.7) As regard the service of legal demand notice, the complainant has sent the same, Ex. CW1/10 to the accused. The original postal receipts in respect of the same are already on record as Ex. CW1/11 and Ex. CW1/12, however, the same was returned back with the reason "Always Door Locked" and envelops showing the reasons are already on record as Ex. CW1/13 and Ex. CW1/14. However, the legal notice was also sent through whatsapp and it was duly served to the accused and the screenshot of the same is exhibit as Ex. CW1/15 supported with certificate of 65B of Indian Evidence Act. The accused has stated in his notice of accusation as well as in his statement u/s 313 Cr.P.C that he did not receive any legal demand notice, however, he has not disputed the whatsapp screenshot which is exhibit as Ex.CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 18/21
CW1/15. It is also pertinent to mention here that summons in the present case were also served through whatsapp and accused had appeared after that service, which further substantiate the mobile number of the accused which is given by the complainant in the present matter. Reference may be taken from the decision of Hon'ble Supreme Court in the case of Anvar P.V. Vs. PK Basheer (2014) 10 SCC 473, wherein the court has held the electronic record by way of secondary evidence can be admitted in evidence u/s 65B only when all conditions mentioned therein are fulfilled and a certificate u/s 65B (4) in this regard is filed on record. This ratio has been reiterated by Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushan Rao Gorantyal 2020 SCC Online SC 571. In the instant case, whatsapp masseges is exhibited as Ex. CW1/15 and the certificate u/s 65B has also been filed. Accused has neither cross examine the complainant on this aspect nor has he specifically denied the receipt of notice through whatsapp in his plea of evidence. Therefore, service of legal demand notice to the accused through whatsapp is proved. It is also pertinent to mention that the accused has never disputed the address mentioned on the legal demand notice. Moreover, in C.C Alava Haji Vs. Palapetty Muhd. and Anr. (2007) 6 SCC 555, the Hon'ble Supreme Court held that "where the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandaotry requirement of issue of notice in terms of clause (b) of proviso to section 138 N.I Act stands complied with". Further, the above judgment also stated that any drawer who claims that he did not received the notice sent by post, can within 15 days of receipt of summons from the court make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons. In the present case, the accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice should served upon the accused.CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 19/21
17.8) Therefore, in the light of the above fact that the legal demand notice was served through whatsapp to the accused. So this ingredient is fulfilled as against the accused.
e.) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of the receipt of the said notice;
17.9) In the instance case, the accused has denied receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C and the statement of the accused u/s 313 r/w section 281 Cr.P.C. However, the accused has failed to adduce any evidence in his favour to rebut the presumption of service.
17.10) In C.C Alava Haji Vs. Palapetty Muhd. and Anr. (Supra) "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 resepct of the complaint u/s 138 of the N.I. Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court along with the copy of the complaint u/s 138 of the N.I.Act, can not obviously content that there was no proper service of notice as required u/s 138, by ignoring statutory presumption to the contrary u/s 27 of G.C Act and section 114 of the Evidence Act. "
17.11) However, the accused has admittedly failed to do so, on the ground that he does not owe any liability towards the complainant, a defence which he has been able to prove at the trial. Hence, this ingredients stands fulfilled as against the accused.
CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 20/2118.) Decision:
As all the ingredients of the offences are cumulatively satisfied against the accused, the accused is hereby convicted of the offence u/s 138 of N.I. Act.
Copy of the judgment is handed over to the convict free of cost.
Announced in the open court on 03.10.2023.
(Kavita Bist) MM (N.I. Act) Digital Court East Karkardooma, Courts, NewDelhi CC No. 668/2021 OP and Sons Traders Private Limited Vs. Maa Sushwani Textile Page No. 21/21