Delhi District Court
Shamser Singh vs Kuldeep Kumar Sharma on 23 August, 2024
IN THE COURT OF MS. AAKANKSHA, JUDICIAL
MAGISTRATE FIRST CLASS, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No.4993403/2016
CNR No. DLSW02-003847-2015
Shamser Singh .........Complainant
Through: Mr. Amit Chauhan, Advocate
Versus
Kuldeep Kumar Sharma ............Accused
Through: Mr. Arvind Sharma, Advocate
(1) Name of the Shamser Singh
complainant
S/o Sh. Prithvi Singh
R/o H.No. A-77, Dashrath
Puri, Dabri, New Delhi.
(2) Name of the accused Kuldeep Kumar Sharma
S/o Sh. Satish Sharma,
R/o H.No.13/180, Geeta
Colony, Near Ramesh
Dhaba, New Delhi.
(3) Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(4) Plea of accused persons Pleaded not guilty
Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma
Page 1 of 22
(5) Date of institution of 18.12.2015
case
(6) Date of conclusion of 13.08.2024
arguments
(7) Date of Final Order 23.08.2024
(8) Final Order ACQUITTAL
JUDGMENT
1. The complainant Shamser Singh has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Kuldeep Kumar Sharma on 17.12.2015.
2. The factual matrix as can be culled out from the complaint is that complainant supplied building material ( roadi, badarpur etc.) to accused who is a contractor, upon his demand many times till June 2015 and in July 2015 accused settled the accounts with complainant thereby agreeing to pay Rs. 3,43,000/- to complainant. The same day in discharge of his liability, accused issued two post-dated cheques in question, one cheque bearing no. 148047 dated 15.08.2015 for a sum of Rs.1,43,000/- and another cheque bearing no. 148048 dated 20.08.2015 for a sum of Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 2 of 22 Rs.2,00,000/-, both drawn on State Bank of India, Geeta Colony, Delhi with assurance of their encashment upon presentation. However, to the complainant's dismay, the said cheques were returned unpaid with remarks "Insufficient Funds" vide return memo dated 14.10.2015. The complainant then issued a legal notice dated 05.11.2015 calling upon the accused to pay the cheque amount within 15 days from the receipt thereof, the same was duly served upon the accused but the accused failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonour of the cheques in question.
3. With a view to establish a prima facie case in order to enable the court to summon the accused, complainant led pre- summoning evidence by way of affidavit Ex. CW-1/A. The complainant relied upon following documentary evidence:
(a) Original cheque bearing no. 148047 dated 15.08.2015 for a sum of Rs. 1,43,000/- drawn on State Bank of India, which is Ex. CW-1/1.
(b) Original cheque bearing no. 148048 dated 20.08.2015 for a sum of Rs. 2,00,000/-, drawn on State Bank of India, which is Ex. CW-1/2.
(c) Cheque return memo dated 14.10.2015, which is Ex.CW1/3.
(d) Cheque return memo dated 14.10.2015, which is Ex.CW1/4.
(e) Office copy of legal notice dated 04.11.2015, which is Ex. CW1/5.Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma Page 3 of 22
(f) Postal receipt, which is Ex. CW1/6.
(g) Tracking report, which is Ex.CW1/7.
(h) Present complaint, which is Ex.CW1/X. Complainant closed his pre-summoning evidence on 08.01.2016.
4. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 08.01.2016. Accused entered his first appearance on 18.11.2016.
5. Notice u/s 251 Cr.P.C. was framed against accused on 25.08.2018 stating out to him the substance of accusation, to which he pleaded not guilty and claimed trial. His defence was recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that he did not issue cheques in question to complainant but they bear his signature, he did not receive legal notice, he issued cheques to DSC Company.
6. Accused was granted right to cross-examine the complainant on oral prayer made u/s 145(2) of NI Act on behalf of accused vide order dated 24.01.2020. The complainant was examined as CW-1 thereby adopting his pre-summoning evidence as post-
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 4 of 22 summoning evidence. CW1 was duly cross-examined and discharged. Vide separate statement of complainant, complainant's evidence was closed on 17.08.2022.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 30.09.2022 wherein all the incriminating evidence was put to the accused and he was granted an opportunity to explain the circumstances appearing against him at trial. While explaining the circumstances appearing in evidence against him, accused stated without oath that he did not receive any building material from complainant at any point of time nor did he settle any account with complainant, he did not issue cheques to complainant but issued the cheques as blank signed security to M/s DSCE where he was sub-contractor, they were issued as security because he had to pay commission to the employee of M/s DSCE regarding work of subcontractor provided to him by employee of said company, he was not aware about dishonor of cheques in issue, he did not receive legal notice, M/s DSCE company handed over the said cheques to complainant and complainant misused the same, he does not know the complainant, he has nothing to pay to complainant. Accused also preferred to lead evidence in his defence.
8. At the stage of defence evidence, accused examined himself as DW1 and Deepak Rajput as DW-2. Both the witnesses Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 5 of 22 were duly cross-examined and discharged. Vide separate statement of accused, defence evidence stood closed on 05.06.2024.
9. At the stage of final arguments, Ld. counsel for complainant submitted that defence has been raised that accused does not know complainant and did not issue the cheques to complainant, but no suggestion was put to CW-1 that accused is not resident of Laxmi Nagar, no explanation has been given by accused whether he received legal notice, accused failed to assign cheque numbers given to DSE Company, accused failed to take action against such company or make any complaint against complainant, complainant supplied material to accused on oral order, accused has failed to file proof that he gave cheques to DSE company and prayed to convict the accused.
Per contra, Ld. counsel for accused submitted that complainant alleges to have supplied building material to accused many times till June 2015, but no averment has been made by complainant as to when the material was supplied, no document has been filed to prove that any material was supplied, no challan, stock register, bill, receipts, nothing has been filed on record, complainant alleges that accused settled the accounts but no settlement has been placed on record, accused gave cheques in issue to M/s DSE Construction company as he was sub-contractor, accused did not receive legal notice, the complaint has been filed in personal capacity, no GST return of firm has been filed, no proof is there on record whether complainant is dealing in building material, no proof of Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 6 of 22 business has been filed by complainant, no proof of truck transporting the material is there on record and prayed to acquit the accused on the ground that there is no privity of contract between the parties. He further stated that accused could not take action against the employees of M/s DSE Company as all employees left the company, no one is traceable.
10. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
11. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that the 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;Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma Page 7 of 22
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) that 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) that 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 legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
12. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 8 of 22 provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 9 of 22 This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of cross-examination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma Page 10 of 22 Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.
It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.
13. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
13.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheques in question on his account maintained with a bank for discharge of any debt or other liability. In the instant case, accused has admitted his signature on the cheques in question in his statement Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 11 of 22 recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheques in question have also been drawn on the account maintained by him with State Bank of India. The said fact has not been denied by accused at any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian : 2021 SCC Online SC 75 Hon'ble Supreme Court held that:
"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 NI Act. 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."
The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa:
(2019) 5 SCC 418, by observing that:
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:
(i) 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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.Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma Page 12 of 22
(iv) 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.
(v) It is not necessary for the accused to come in the witness box to support his defence."
13.2. In the instant case, the accused having admitted his signature on the cheques in question and the said cheques being drawn on his bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheques in question were issued by him in discharge of, whole or part of, legally enforceable debt or liability.
13.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 13 of 22 13.4. The accused has chosen to do so by cross examining CW1 and leading evidence in his defence. During cross-examination, CW1 deposed, in brief, that he is doing business of supplying building material from his office situated at Dabri in the name of M/s Shamsher Singh of which he is a proprietor, he did not file any document to prove his business, he is doing business since 2014-15, his firm is registered but he did not file any document, his firm was not registered with GST or VAT department in 2014-15, his firm is not maintaining any invoice or bill books, he did not file any invoice or bill book in present case, his firm does not maintain stock record, he did not file any purchase order as at that period purchase order was given orally by accused, he has not filed any documentary evidence like invoice, challan, for supplying building material to accused, he knows that accused resides at Geeta Colony but does not remember the house number.
13.5. In defence, accused chose to examine himself as DW-1. He deposed, in brief, that he entered into contract with M/s DSE Construction company in 2013 in which he had to install towers, he commenced the work of installation of towers in May 2013, he was required to pay commission to some people of DSE as per generation of bills and for that purpose he was made to sign a contract and 4-5 blank signed cheques including cheques in question were taken by employees of DSE company, the site was then sealed by DG Maps in February/March 2014, he does not know the complainant, he never Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 14 of 22 issued cheques to complainant. During cross-examination, the accused deposed, in brief, that he is under graduate and into business of construction since 22-23 years, he had no employee in 2015 to maintain his accounts, he manages his own bank accounts, he does not have record of being sub-contractor of DSE Construction, he received information of dishonor of cheques upon receipt of summons, he did not file any complaint regarding dishonor of cheques as he did not know who presented the cheques and only came to know about it after appearing in court, he did not file any document to prove that cheques were handed to the company, he worked with the company lastly in DG Map project at Delhi Cantt Kabul Lane in which site was sealed in 2013, he did not give written intimation to DSE Construction for return of his cheque as all sites were sealed, he did not give stop payment instruction of the cheques, he handed over the cheques to Mr. Mishra, Engineer in DSE Construction, legal notice bears his correct address but he did not receive the same, he does not remember the series of cheques given to the company, he never saw any employee of company with complainant, he does not if complainant has any connection with DSE Construction, he cannot bring any witness from the said company as their staff has been changed.
13.6. The accused also examined Deepak Rajput as DW-2 who deposed that he is employee of accused at Ramji Construction, he used to supervise sites including site at Delhi Cantt where DSC Company was operative, he used to keep challans and issue invoices Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 15 of 22 at the said site, handing over one copy of invoice to the person bringing the material and keeping one copy with himself, he used to handover copy of invoice to accused, in 2013 DSC work was closed. During cross-examination, the witness deposed that he is working with accused since 2008, he does not have personal knowledge regarding transaction between complainant and accused, accused never informed him about issuance of cheque to complainant, accused used to get material from DSC company and sometimes from Rohit Builders, he has brought certain bills/challans issued by Rohit Building Material (Mark A), but the same have not been signed by him.
13.7. The complaint case revolves around the allegation of accused issuing cheques in question to complainant against payment for supply of building material. Whereas the accused while denying having any kind of business dealing with complainant, has raised defence of not issuing the cheques to complainant. Accused has taken defence that he issued cheques in question as blank signed security cheques to M/s DSE Construction company with which he was sub- contractor. He further deposed that he does not know how the cheques came into possession of complainant and he never even saw complainant with any employee of M/s DSE Construction company. Admittedly, accused did not take any legal action against M/s DSE Construction company for non-return of his cheques despite the site being closed way back in 2013, which raises a doubt over the defence.
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 16 of 22 13.8. However, the pivotal defence as raised by accused is that he had no dealing whatsoever with complainant and does not know the complainant. Accused extensively cross-examined the complainant as regards proof of such business dealing, which complainant has failed to prove. The present case is not a case of mere friendly loan devoid of any proof of advancement. Unlike a friendly loan, present case is based on allegation of existence of business relationship between the parties. It is uncommon that any business relationship would exist devoid of any proof. However, despite questioning CW-1, complainant has been unable to file any proof of running any business of building material. Complainant has failed to file any purchase order allegedly issued by accused for supply of building material, nor has complainant filed any invoice raised by him. Although complainant alleges that such purchase order was placed orally, but no stock register, bill, challan, or even proof of supply of any material has been placed on record. Complainant has alleged supplying building material like roadi, badarpur etc. to accused. Such building material must have been delivered to accused through some tractor or any mode of transport. One cannot expect complainant to personally supply such building material to accused. Thus, when complainant was cross-examined to prove that he did not supply any material to accused and to establish whether any such dealing even took place between them, the burden was upon complainant to prove the existence of such business dealing with accused. However, complainant failed to file any proof whatsoever. No running account, or ledger account maintained by complainant Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 17 of 22 was placed on record. No details of transport vehicle, builty, challan was placed on record.
13.9. It is settled law that accused need not even step into the witness box to rebut the legal presumption standing against him and such burden can be discharged merely by cross-examination of complainant witnesses challenging the case of prosecution. The test was of preponderance of probability, where accused can be said to have discharged the burdened only by raising a probable defence that consideration either did not exist or its existence was so improbable that any prudent person ought to act on supposition that it did not exist. In the case at hand also, by way of cross-examination of CW-1 the accused has been able to raise a probable defence that there existed no business dealing between him and complainant. Further, a mere perusal of cheques in question proves that it has been filled in different handwriting and ink. The name of payee has not been filled by the same person who signed the cheques. This fact caters to the defence that accused did not issue the cheques in question to complainant and were never meant for complainant to be presented for encashment.
13.10. In view of the above, it can be safely concluded that accused has been successful in raising a probable defence that the cheques in question were not issued in discharge of his liability to complainant.
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 18 of 22 The first legal requirement is, thus, proved in favour of the accused.
14. The second legal requirement is:
"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."
The cheques in question Ex. CW-1/1 and Ex. CW-1/2 are dated 15.08.2015 and 20.08.2015. The cheque returning memos Ex. CW-1/3 and Ex. Ex.CW-1/4 are dated 14.10.2015 each, which proves that the cheques in question were presented within the period of their validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated in favour of complainant.
15. The third legal requirement is:
"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."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and upon production of such bank memo, the burden shifts upon accused to disprove the same. In the instant case, a presumption has been raised in favour of complainant Ct. Case No. 4993403/2016 Shamser Singh v. Kuldeep Kumar Sharma Page 19 of 22 by virtue of Section 146 NI Act that the cheques in question were dishonored for the reason stated therein viz. funds insufficient and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has failed to disprove the same.
Thus, the third legal requirement is adjudicated in favour of complainant.
16. The fourth legal requirement is:
"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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
In the instant case, the cheques in issue were returned dishonored on 14.10.2015. The complainant sent a legal notice dated 04.11.2015 (Ex.CW-1/5) addressed to the accused. Speed post receipt dated 05.11.2015 is Ex. CW-1/6. The date of postal receipt proves that the legal notice was sent to accused within thirty days of receipt of information of dishonour of cheques in issue. Accused has although denied receiving of legal notice, but has not disputed the address to which such legal notice was addressed to. Thus, it can be said that the legal notice was properly addressed to the correct address of accused and by virtue of presumption u/s 27 General Clauses Act a ccused is deemed to have received the legal notice, if the notice has been sent to correct address by post.
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 20 of 22 16.1. Even otherwise, law expects a person pleading non- receipt of any demand notice to prove his bona fide by making the payment of the cheque amount within 15 days of receiving court summons. This is crystallized by the verdict of Hon'ble Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and section 114 of the Evidence Act."
16.2. In the case at hand, despite issuance of summons and appearance of accused before the court, accused has failed to pay the cheque amount to the complainant and thus is precluded from raising the plea of non-service of demand notice.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
Ct. Case No. 4993403/2016Shamser Singh v. Kuldeep Kumar Sharma Page 21 of 22
17. The fifth legal requirement is:
"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."
It is undisputed fact and a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
18. All the legal requirements constituting an offence u/s 138 NI Act being cumulative in nature, the fact that the first legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused Kuldeep Kumar Sharma is held 'not guilty' for the alleged offence u/s 138 NI Act.
Announced in the open Digitally signed
by
court on 23rd August, 2024 AAKANKSHA
AAKANKSHA Date:
2024.08.23
15:36:53 +0530
(Aakanksha)
Judicial Magistrate First Class (NI Act)-07
South West District, Dwarka Courts,
New Delhi
Ct. Case No. 4993403/2016
Shamser Singh v. Kuldeep Kumar Sharma
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