Delhi District Court
Digitally Signed vs . on 2 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
CT. Case No. -: 5117/2018
Unique Case ID No. -: DLSH020095592018
Police Station -: Anand Vihar
Section(s) -: 138 NI Act
In the matter of -
ARVINDER KAPOOR
VS.
SANTOSH KUMAR
S/o Ram Bahadur Rai
R/o H. No. US-232,
Uttari School Block,
Mandawali, Fazalpur, Delhi
.... Accused
1. Name of Complainant : Arvinder Kapoor
2. Name of Accused : Santosh Kumar
3. Offence complained of or proved : 138 NI Act
4. Plea of Accused : Not guilty
5. Date of Filing of case : 13.11.2018
6. Date of Reserving Order : 27.07.2023
7. Date of Pronouncement : 02.08.2023
8. Final Order : Convicted
Argued by -: Sh. Dinesh Singh Chaudhary., Ld. Counsel for
complainant.
Sh. Jitender Kumar Jha, Ld. Counsel for the
accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION :-
1. The present complaint has been filed against the
accused under Section 138 of the Negotiable Instruments Act,
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.02
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1881 (hereinafter "NI Act"), for dishonour of the cheque
mentioned in the table below :-
TABLE I -
Cheque Amount Drawn Date of Date of Reason of Date of legal
No. (In Rs.) on cheque dishonour dishonour notice and
Bank (Return date of
Memo) dispatch
046639 3,00,000 ICICI 13.08.2018 21.08.2018 Funds 13.09.2018
Bank Insufficient
The substance of allegations and assertions of the complainant is
that the complainant had good relations with the accused and on
asking of the accused, the complainant had advanced Rs.
3,00,000/- as a friendly loan to the accused on 11.01.2018 via
bank transfer. It was agreed that the loan will be repaid within
three months alongwith an interest of 1 % per month. However, it
is alleged that no repayment, except for one payment of Rs.
21,000/- towards interest, was made by the accused. The
complainant has alleged that in order to discharge the liability,
the accused issued the cheque mentioned in Table I to the
complainant. The said cheque, when presented, was returned
unpaid by the bank. The complainant then issued a demand
notice, which was received by the accused. Even after the receipt
of the demand notice, the accused failed to pay the cheque
amount within the stipulated period and hence, the present
complaint.
2. After the accused was summoned, notice of
accusation under Section 251, Code of Criminal Procedure, 1973
(hereinafter "CrPC") was served upon the accused. In reply to
the notice of accusation, the accused pleaded not guilty and
claimed trial.
3. During the trial, the complainant has led the
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by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.02
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following oral and documentary evidence against the accused
to prove his case beyond reasonable doubt :-
ORAL EVIDENCE
CW-1 : Arvinder Kapoor (Complainant)
DOCUMENTARY EVIDENCE
Ex. CW1/A : Evidence by way of affidavit
Ex. CW1/1 : RTGS Counterfoil
Ex. CW1/2 : Cheque no. 046639
Ex. CW1/3 : Return Memo
Ex. CW1/4 : Legal notice dated 13.09.2018
Ex. CW1/5 : Postal receipt
Ex. CW1/6 : Postal receipt
Ex. CW1/7 : Tracking report
Ex. CW1/8 : Tracking report
4. Thereafter, before the start of defence evidence, in
order to allow the accused to personally explain the
circumstances appearing in evidence against him, the statement
of accused under Section 313 CrPC was recorded without oath.
Every incriminating evidence appearing on record was put to the
accused. In reply, the accused admitted that he had taken a
friendly loan of Rs. 3,00,000/- from the complainant but denied
that it was to be repaid within three months and at an interest of 1
% per month. He stated that it was agreed that the interest would
be 2 % per month and the loan tenure was of 20 months. He
stated that it was agreed that he will pay Rs. 15,000/- per month
alongwith interest. He stated that he had to pay the installments
in cash. He admitted making payment of Rs. 21,000/- to the
complainant but stated that it was the installment for the month
of July, 2018. He stated that the cheque was given to the
complainant as security at the time of taking the loan and the
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by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.02
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amount was not filed by him. He admitted dishonour of the
cheque and stated that it was presented without his knowledge.
He admitted the receipt of legal notice, and not responding to it.
He stated that he tried to contact the complainant to resolve the
dispute and stated that he owes liability of only Rs. 2,10,000/-
towards the complainant, which he is willing to pay. Pursuant
thereto, he stated that he wishes to lead defence evidence.
5. During the trial, the accused has led the following
oral and documentary evidence to disprove the case against
him :-
ORAL EVIDENCE
DW-1 : Santosh Kumar (Accused)
DOCUMENTARY EVIDENCE
Mark A : Boarding pass
Mark B : Photos
Mark C : CD
Mark D : Transcript
Ex. DW1/A : Flight ticket
6. I have heard the learned counsel appearing for the
parties and have given my thoughtful consideration to the
material appearing on record.
7. It has been argued by the ld. counsel for the
complainant that all the ingredients of the offence are fulfilled in
the present case. He has argued that the accused has admitted the
case of the complainant and his defence remains unproved. It is
argued that the stands of the accused taken during various stages
of the trial are contradictory and minor inconsistencies in the
case of the complainant are to be ignored. He has argued that the
accused has accepted the issuance of cheque and has failed to
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by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.02
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rebut the presumption raised against the accused. As such, it is
prayed that the accused be punished for the said offence.
8. Per contra, ld. counsel for the accused has argued
that the complainant has failed to establish its case beyond
reasonable doubt. He submits that even though the receipt of loan
is admitted, the accused has no legally enforceable liability of the
cheque amount. It is argued that the cheque in question has been
misused by the complainant and the version of the complainant
has been disproved by the defence evidence on record. As such, it
is prayed that the accused be acquitted of the said offence.
ANALYSIS -
9. Before dwelling into the facts of the present case, it
would be apposite to discuss the legal standards required to be
met by both sides. In order to establish the offence under Section
138 of NI Act, the prosecution must fulfil all the essential
ingredients of the offence. Perusal of the bare provision reveals
the following necessary ingredients of the offence :-
First Ingredient: The cheque was drawn by a person on an
account maintained by him for payment of money and the
same is presented for payment within a period of 3 months
from the date on which it is drawn or within the period of its
validity;
Second Ingredient: The cheque was drawn by the drawer
for discharge of any legally enforceable debt or other
liability;
Third Ingredient: The cheque was returned unpaid by the
bank due to either insufficiency of funds in the account to
honour the cheque or that it exceeds the amount arranged to
be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been
made by the payee or holder in due course of the cheque by
a notice in writing given to the drawer within thirty days of
the receipt of information of the dishonour of cheque from
the bank;
Fifth Ingredient: The drawer fails to make payment of the
said amount of money within fifteen days from the date of
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.02
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receipt of notice.
10. The accused can only be held guilty of the offence
under Section 138 NI Act if the above-mentioned ingredients are
proved by the complainant co-extensively. Additionally, the
conditions stipulated under Section 142 NI Act have to be
fulfilled.
11. In the present matter, it is proved by the complainant
that the cheque Ex. CW1/2 was drawn by the accused, and was
presented within limitation i.e. within 3 months. The accused has
not denied issuance of the cheque in question. It is also not
disputed that the cheque in question was returned unpaid. The
return memo Ex. CW1/3 has been proved by the complainant.
The legal demand notice Ex. CW1/4 seeking the cheque amount,
was issued within time. The accused has admitted receipt of the
legal notice in his statement under Section 313 CrPC and the
complainant has also proved delivery and receipt of the same by
tendering into evidence, the postal receipts Ex. CW1/5, Ex.
CW1/6 and tracking reports Ex. CW1/7 and Ex. CW1/8. It is
admitted fact that no payment was made within fifteen days of
the receipt of legal notice. The complaint has been filed in time
and all the limitation periods prescribed in the NI Act have been
adhered to.
12. The only point remaining to be adjudicated is
whether the cheque in question was issued by the accused in
discharge of a legally enforceable debt. In the present case, the
signature of the accused on the cheque in question is not denied.
The accused admitted in the statement under Section 313 CrPC
that he has issued the cheque in question. He has not denied the
signatures in his statement and has only stated that the amount
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DEV DEV CHAUDHARY
CHAUDHARY Date: 2023.08.02
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was not filled up by him in the cheque. Even in the application
filed by the accused under Section 145(2) NI Act, the defence
taken by the accused is that he had given the cheque to the
complainant as security and it was only signed and the other
columns were left blank. Suffice it to say, the fact that the cheque
in question have been signed by the accused is an admitted fact.
Since the accused has admitted the signatures on the cheque in
question, the presumptions enshrined under Section 118(a) and
139 of the NI Act are raised against the accused. In the former
provision, it is presumed that the negotiable instrument was made
or drawn for consideration while the latter provision enshrines
the presumption that the holder of the cheque received it for the
discharge, in whole or part, of any debt or other liability. Since
both Section 118 and 139 of the NI Act use the word "shall",
raising of the presumption is mandatory for the court, once the
foundational facts are proved {Refer Hiten P. Dalal vs.
Bratindranath Banerjee (2001) 6 SCC 16} and then the onus
shifts on the accused, who has to rebut the same by establishing a
probable defence.
13. The principles regarding the onus of proof have
been laid down by the Hon'ble Apex Court in Basalingappa vs.
Mudibasappa (2019) 5 SCC 418, inter alia, in the following
words:
"25. We having noticed the ratio laid down by this Court in
the above cases on Section 118(a) and 139, we now
summarise 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
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.02
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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."
Thus, it is for the accused to establish a probable defence on the
standard of preponderance of probabilities to prove that there was
no legally enforceable debt or other liability.
14. In this regard, the initial onus of proving the debt is
always on the complainant. However, it is now settled law that
the existence of debt is also a matter of presumption under
Section 139 NI Act. A three-judge bench of the Hon'ble Apex
Court in Rangappa vs. Sri Mohan (2010) 11 SCC 441 has held,
after discussing the law on this point, as under:-
"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 that extent, the impugned observations in Krishna Janardhan Bhat may not be correct."
Therefore, the onus was on the accused to prove that there was no legally enforceable debt and not the vice-versa. The complainant has duly proved his case by proving the relevant documents such as the cheque in question, return memo etc. The fact that the parties had transactions amongst themselves is not disputed. The accused has admitted the advancement of loan of Rs. 3,00,000/- and the only dispute is regarding the terms of the Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 8 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:15:19 +0530 loan and repayment.
15. The complaint has also corroborated his case by proving on record the counterfoil of the RTGS, Ex. CW1/1, as well as evidence by way of affidavit, Ex. CW1/A. The complainant has also been examined as CW1. Despite being subjected to cross examination, nothing substantial has been elicited from the witness to corroborate the defence of the accused, or punch holes in the version of the complainant. The accused has put questions to the complainant regarding his financial capacity and ITRs. However, these questions are irrelevant especially when the advancement of loan is not disputed. The accused DW1 has himself admitted the disbursal of loan by the complainant to him. The complainant has also admitted that no written loan agreement was prepared.
16. The defence of the accused is that the loan was repaid by the accused. However, it is observed that the stands taken by the accused in this case are not only inconsistent, but mutually contradictory. In his reply to the notice of accusation under Section 251 CrPC, the accused had mentioned that he will disclose his defence in his application under Section 145(2) NI Act. In the said application, to which the accused is a signatory, the defence taken is that the loan was repaid by the accused. It is mentioned that the cheque was a security cheque, which has been misused by the complainant. It is mentioned that there was no talk of interest between the parties.
17. However, during the cross examination of the complainant, a suggestion has been put to the complainant by the accused himself that the loan with interest was advanced to the Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 9 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:15:24 +0530 accused. The accused then again changed his stand in his statement under Section 313 CrPC, wherein it is specifically mentioned by the accused that the interest of 2 % per month was to be paid him. Yet another contradictory version has come on record in the application of the accused under Section 315 CrPC, wherein the accused has taken two stands, wherein at one point it is mentioned that the loan was to be repaid within 20 months with interest of 2 % per month and at another point in the same application, it is mentioned that the the loan was advanced with interest of 1 % per month. Thus, the accused has not been able to take a single stand with regard to the interest in the loan transaction and the multiple inconsistent stands of the accused on this aspect only points towards the weakness in his defence.
18. Further, it is observed the versions of the accused regarding the duration of the loan and repayment are also unreliable. During cross examination of the complainant CW1, a suggestion was put to the witness that the loan was repaid in 6 installments. Another suggestion was put that the loan duration was of 1 year and not three months. This suggestion was denied by the witness. Further, in his statement under Section 313 CrPC, the accused has changed his stand and stated that the duration of the loan transaction was 20 months. Similarly, in his application under Section 315 CrPC, it is mentioned that the duration was of 20 months. Same is the stand by the accused in the witness box. Thus, the accused has taken different stands on this aspect as well. Further, with regard to repayment, the accused has taken a stand in his application under Section 145(2) NI Act that the loan was repaid in installments via cash. It is mentioned that the dues Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 10 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.02 15:15:31 +0530 of the complainant have been cleared. However, in his statement under Section 313 CrPC, the accused has taken a contradictory stand and categorically admitted that he has a liability to pay Rs. 2,10,000/- to the complainant. Pertinently, the accused has not shown any proof of repayment via cash. No documentary or ocular evidence has been adduced in this regard. The accused DW1 has admitted in his cross examination that he has no documentary proof regarding the amount and date of repayment via cash. Further, he has admitted that no repayment was made after July, 2018. Thus, it can be safely held on the basis of the above discussion that the defence of repayment of dues remains unproved, even on the standard of balance of probabilities.
19. The complainant has admitted that the accused has made one payment of Rs. 21,000/-, which was credited into the account of the complainant on 05.07.2018. In this regard, the stand of the complainant is that this payment was qua the interest for the period of January to July (Rs. 3,000/- interest at 1 % per month for one month x 7 months = Rs. 21,000/-). However, the version of the accused in his statement under Section 313 CrPC is that it was the installment for the month of July. In this regard, the accused has made no mention of the said repayment in either his application under Section 145(2) NI Act or his deposition before the Court as DW1. It is not explained as to why only one installment was repaid via account transfer. Notably, no suggestion has been put regarding the said payment to the complainant CW1 during his cross examination, despite a specific averment by the complainant in this regard, during his deposition. Therefore, the version of the complainant in this Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 11 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:15:36 +0530 regard appears to be correct and that of the accused is liable to be rejected.
20. Another circumstance, which is a bone of contention between the parties, pertains to the factum of handing over the cheque. The complainant CW1 has mentioned in the evidence by way of affidavit Ex. CW1/A that the accused has issued him the cheque in question, after his repeated requests. In cross examination, the complainant CW1 was questioned about the same and he deposed that the cheque in question was handed over to him by the accused in the month of August, 2018. He has given an approximate date of either 09.08.2018 or 10.08.2018, when the cheque was handed over to him, at his house. He admitted that he filled the particulars on the cheque, at the request of the accused. He stated that his mother was not present when the cheque was handed over to him. Thus, there is no witness to the said fact. The defence raised by the accused is that the assertion of the complainant is false as the accused was not present in Delhi on either 09.08.2018 or 10.08.2018.
21. In this regard, it is pertinent to note at the outset that the accused has given two contradictory suggestions to the complainant on this point. At one point, a suggestion was given to the complainant CW1 that the entire loan agreement was cleared by the accused at the time when the cheque in question was handed over to the complainant (it defies logic as to why a cheque would be given after all dues have been cleared!).
However, on another point, it is suggested that the cheque in question was given as a security when the loan was advanced. Thus, the accused has himself given two different versions Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 12 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:15:41 +0530 regarding the handing over of the cheque to the complainant.
22. The accused also entered into the witness box in this regard. However, he only deposed about his non-presence in Delhi. No deposition about the other facts pertaining to the case was given. Only the air-tickets, photographs etc. were tendered into evidence without any deposition about the factual foundation of the case. The accused deposed that he was out of Delhi from 07.08.2018 till 12.08.2018 and he could not have handed over the cheque to the complainant. However, neither the boarding pass Mark A, which is a photocopy/printout, nor the photographs Mark B, have been proved according to the Indian Evidence Act. No certificate under Section 65B of the Indian Evidence in support of these documents has been tendered into evidence.
23. Even otherwise, merely because the accused was not in Delhi on the dates deposed by the complainant does not affect the case of the complainant. The fact that the cheque was issued by the accused to the complainant is not disputed. It is an admitted case that accused had himself issued the cheque to the complainant. The accused has taken different stands on this point. Further, the complainant has not stated with certainty that the cheque was issued only on the date when the accused was out of station. Even otherwise, the accused has himself admitted that he was in Delhi, on the date mentioned on the cheque. Therefore, I am in agreement with the learned counsel for the complainant that this inconsistency in the narration of the complainant does not go to the root of the matter, and is liable to be ignored.
24. The only material on record remaining to be considered is the CD, Mark C, tendered into evidence by the Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 13 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:15:46 +0530 accused. In this regard, it is noted that in the CD, it is not identified as to who are the parties to the conversation. The accused has not made any assertion whatsoever in this regard, in his deposition. Even otherwise, the genuineness of the CD and transcript has been successfully questioned by the complainant in the cross examination of the accused. The accused DW1 has admitted that he does not have the original mobile device wherein the conversation was recorded. Thus, the CD being secondary evidence, was required to be produced alongwith Section 65B Indian Evidence Act certificate. Refer: Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal 2020 SCC OnLine SC 571. The certificate under Section 65B of the Indian Evidence Act in support of the CD has not been tendered into evidence, by the defence. The certificate on record even otherwise does not satisfy the conditions as enumerated under the provision. Further, the accused admitted not knowing whether the transcript Mark D of the alleged conversation was prepared by any expert or not. He admitted that the transcript does not bear any signatures of any person and he further admitted that it was not possible to identify the voices in the conversation since he was not present at the time when the transcript was prepared. Thus, in view of the above, the CD and the transcript, which even otherwise does not absolve the accused from the liability, cannot be read into evidence.
25. The presumptions operate against the accused and it was incumbent upon the accused to prove his defence, on a standard of preponderance of probabilities. The accused has not proved on record any documentary or other evidence to show Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 14 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.02 15:15:52 +0530 that the payments were infact made to the complainant. No witness has been examined in this regard. Moreover, merely stating that the cheque was issued as security cannot be a ground to escape liability. It is settled law that the cheque issued for the liability existing at the date when they were drawn are covered under the scope of Section 138 NI Act. Reliance is placed on Suresh Chandra Goyal vs. Amit Singhal 2015 SCC OnLine Del 9459 in this regard. The offence under Section 138 NI Act also covers within its ambit a situation where the debt or liability subsists on the date of presentment of the cheque. Similar observations were made in the case titled Credential Leasing and Credits Ltd. vs. Shruti Investments and Ors. 223 (2015) DLT 343. In the present case, the accused has failed to rebut the evidence of the complainant that he had not paid the dues of the complainant. Thus, as discussed above, the liability of the accused is in existence and subsisting.
26. Further, the defence that the cheque was only signed by the accused is also liable to be rejected in terms Section 20 of the NI Act wherein it is provided that when a blank signed cheque has been handed over to a person, prima facie authority is given to that person to fill other particulars. What makes the version of the accused highly doubtful is that no stop payment instructions were issued to the bank by the accused, in case the dues were cleared by him. Any prudent person would immediately issue such instructions to the bank in case the payments were already made.
27. Hence, in view of the discussion in the foregoing paragraphs, the inevitable conclusion is that the accused has Ct. no. 5117/2018 ARVINDER KAPOOR Vs. SANTOSH KUMAR Page no. 15 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.02 15:15:59 +0530 failed to rebut the onus on him and the complainant has been successful in proving the existence of a legally enforceable debt.
CONCLUSION -
28. To recapitulate the above discussion, the complainant has been successful in establishing his case. The signature on the cheque in question is admitted by the accused and presumption under Section 118 and Section 139 of NI Act is raised against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that the complainant was paid the dues is not proved, even on the standard of preponderance of probabilities.
29. As such, the complainant has proved the offence beyond reasonable doubt and the accused has failed to raise a probable defence. Resultantly, the drawer of the cheque, accused SANTOSH KUMAR son of Ram Bahadur Rai is hereby CONVICTED of the offence under Section 138 of the Negotiable Instruments Act, 1881.
30. Let the convict be heard separately on quantum of sentence. A copy of this judgment be given free of cost to the convict. DEV Digitally signed by DEV CHAUDHARY CHAUDHARY Date: 2023.08.02 15:16:11 +0530 Announced in Open (DEV CHAUDHARY) Court in presence of accused person. Metropolitan Magistrate - 07 Shahdara District, KKD This judgment contains 16 signed pages.
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