Delhi District Court
Cis No. 2589/19, Vikas Verma vs Parvinder Kumar on 15 November, 2022
IN THE COURT OF SH. ABHINAV PANDEY:
METROPOLITAN MAGISTRATE- 04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS :
DELHI
CIS no. 2589/19
1. Complaint Case number :
CIS No. 2589/19
2 Name of the complainant : Sh Vikas Verma
s/o Sh. Vinod Kumar Verma,
R/o C-69, East Jawahar
Nagar, Loni, Ghaziabad, UP-
201102
3. Name and address of the : Sh. Parvinder Kumar
accused S/o Sh. Rajender Kumar, R/o
H. No. U-49/B, Gali no. 4,
Shiv Vihar Phase 4, Karawal
Nagar, Delhi-110094.
4. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial.
6. Final Order : Convicted
7. Date of Institution : 07.06.2019
8. Date of Reserving the : 29.10.2022.
Judgment
9. Date of pronouncement : 15.11.2022.
CIS No. 2589/19, Vikas Verma vs Parvinder Kumar
Page 1 of 21
JUDGMENT
I. Brief factual background 1.1 It is the case of the complainant that the complainant and the accused were having friendly relations with each other. It is further stated that in the month of November 2018, the accused approached the complainant for a friendly loan of Rs. 2,50,000/- for the purpose of his business and accordingly, at the request of the accused, the complainant transferred the amount of Rs. 50,000/- on 23.11.2018 and Rs. 2,00,000/- on 27.11.2018 in the account of M/s Vaisho Chemicals, which is the accused's firm. The accused promised to repay the same on or before 31.03.2019. In discharge of his liability, the accused is alleged to have issued two cheques bearing no. 000006 dated 12.04.2019 for Rs. 50,000/-, drawn on Kotak Mahindra Bank, Lajpat Nagar Branch, Delhi and cheque no. 000056 dated 12.04.2019 for Rs 2,00,000/- drawn on HDFC Bank, Yamuna Vihar Branch Delhi, to the complainant. (hereinafter referred to as the 'cheques in question'). These cheques in question were returned unpaid upon presentation on account of the reason "funds insufficient", vide return memos dated 16.04.2019. The complainant, then, allegedly sent a legal notice dated 02.05.2019 to the accused, but to no avail. It is further alleged that the accused failed to pay the cheque amount within the statutory period, and hence, the present complaint under Section 138 of Negotiable Instruments Act, CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 2 of 21 1881 (hereinafter referred to as 'NI Act') was filed by the complainant against the accused.
1.2 Upon service of summons, the accused entered an appearance in the present matter on 23.01.2020, and was admitted to bail. Notice under Section 251 Cr.P.C. was served upon the accused on 27.03.2021, to which the accused pleaded not guilty and claimed trial. Thereafter, the accused was allowed to cross-examine the complainant u/s 145 (2) of NI Act. After cross- examination of the complainant, the matter was fixed for recording statement of the accused under Section 313 Cr.P.C. In the said statement recorded on 22.02.2022, the accused has stated that he does not have any liability qua the cheques in question as he had handed over the present blank signed cheques to Rajesh Kumar Yadav, who was working with him, as they were having transactions with each other and in his absence, he is required to hand over the cheques to the clients. It is further stated that he met the complainant only once, but he did not have any transaction with the complainant. He allegedly came to know as to the dishonour of the cheques only after the same were dishonored. Thereafter, he states to have called the complainant and the complainant allegedly told him that Rajesh owed him certain money and the complainant told him to pay the said amount to him, qua the liability of Rajesh. He stated to have not received any legal notice and further stated that on 28.12.2018, the complainant had transferred an amount of Rs. 50,000/- in his CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 3 of 21 account. It is further stated that the said amount was got deposited at the instance of Rajesh. He stated to have no dealing with complainant, and alleged that he had only one dealing with Rajesh. Accused opted to lead defence evidence and examined himself as DW1.
2. Evidence 2.1 In order to support his case, the complainant had stepped into the witness box as CW1, and tendered his affidavit Ex. CW1/A into evidence, wherein averments made in the complaint were reiterated. He also relied upon various documents such as EX. CW1/1 and Ex. CW1/2 which are the cheques in question, Ex. CW1/3 and Ex. CW1/4 which are the return memos, Ex. CW1/5 which is the legal notice, Ex CW1/6 which is the postal receipt, Ex CW1/7 which is the unclaimed speed post, and Ex. CW1/8 which is the unclaimed/refusal intimation report. He was cross examined by the defence.
3. Arguments:
3.1 Ld. counsel for the complainant has argued that all the requirements of Section 138 of NI Act have been met with in the present case and, hence, the accused should be convicted. On the other hand, it has been argued on behalf of accused that complainant has failed to prove his case beyond reasonable doubt and, hence, the accused is entitled to be acquitted. Written CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 4 of 21 arguments were also submitted on behalf of accused. I have heard the arguments and also gone through the record carefully.
4. Points for determination:
It has been held in K. Bhaskaran vs Sankaran Vaidhyan Balan (1999) 7 SCC 510 that the offence under section 138 of the NI Act can only be completed with the concatenation of a number of acts, required for completing the offence, and accordingly, the following issues need to be determined by this court.
(i) Whether the accused issued the cheque in question to the complainant?
(ii) Whether, the cheque in question was issued by the accused for discharge, in whole or in part, of any debt or other liability?
(iii) Whether the cheque was, on presentation, dishonoured due to reasons specified in Section 138 of Negotiable Instruments Act, 1881 ?
(iv) Whether the complainant has made a demand for payment of the amount of money in the cheque, by giving to the drawer, a notice in writing, within 30 days of the receipt of information by him, from the bank, regarding the return of the cheque as unpaid and the accused has failed to make the payment of the said amount of money to the complainant, within 15 days of the receipt of said notice?
(v) Whether the cheque was presented within the period of its CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 5 of 21 validity, or within 3 months from the date on which it was drawn, and the complaint has been made, within a period of one month from the date when the cause of action has arisen under clause
(c) of the proviso to Section 138 of Negotiable Instruments Act, 1881?
5. BRIEF STATEMENT OF REASONS FOR DECISION:
On the basis of the evidence adduced, this court now proceeds to determine whether all the ingredients of the offence under section 138 NI Act have been satisfied in the present complaint.
For the sake of convenience, issues no. 1 and 2 are being decided together.
6 Whether the accused issued the cheque in question, and the same was issued by the accused for discharge, in whole or in part, of any debt or other liability?
6.1.1 Onus of proof: Once the issuance of the cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 6 of 21 upon the accused to prove the non-existence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", and the meaning of the word "shall presume" in Section 4 of the Evidence Act, shows that the presumption under Section 139 is rebuttable. 6.1.2 Standard of proof: the standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence,beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debut or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the rescue of the complainant. [Bharat Barrel & Drum Manufacture Co. Vs. Amin Chand Pyarelal (1999) 3 SCC 3S and M.S. Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 relied upon]. 6.1.3 Mode of Proof: The accused may adduce direct evidence to prove that the note in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the non-existence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 7 of 21 contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable, has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances (including presumption under Section 114 Evidence Act), upon the consideration of which, the Court may either believe that the consideration and debut did not exist, or their non-existence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist. [Kishan Rao Vs. Shankaguda, 2018 (8) SCC 165, Mosaraf Hossain Khan Vs. Bhageeratha Engg. Ltd. & Ors (2006) 3 SCC 658, Goa Plast (P) Ltd. Vs. Chico Ursula D Souza (2004) 2 SCC 235, Monaben Ketanbhai Shah Vs. State of Gujarat (2004) 7 SCC 15, Prem Chand Vijay Kumar Vs. Yashpal Singh (2005) 4 SCC 417, DCM Financial Services Vs. J N Sareen (AIR 2008 SC 2255), K. Bhaskaran Vs. Shankaran Vaidhyan Balan (1999) 7 SCC 510 relied upon].
6.2 About security cheques:
6.2.1 In ICD vs. Beena Shabir and Anrs.: 2002(6) SCC 426, the Supreme Court has held that the security cheques also would fall within the purview of the Section 138 of the NI Act and a person could not escape his liability merely by stating that the CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 8 of 21 cheque had been given as security. As such, when there is existence of debt on the date of presentation of the cheque and the security cheques issued are dishonoured, the accused would be liable under Section 138 of the NI Act. Similar has been the law laid down by Hon'ble High court of Delhi in Wilson Mathew versus State of NCT of Delhi (Crl.Rev Pet. 188/2015).
6.2.2 In Collage Culture and Ors. vs. Apparel Export Promotion Council: 2007 (99) DRJ 251, a distinction has been drawn between two kinds of cheques, namely, one issued in discharge in presenti but payable in future and the other issued in respect of a debt which comes into existence on the occurrence of a contingent event, and is not in existence on the date of issue of a cheque. The latter cheque, being by way of security cheque, will not be covered under Section 138 of NI Act. In the aforesaid decision, definition of the word 'due' has been given as 'outstanding on the relevant date'.The Court,therefore, held that the debt has to be in existence as a crystallized demand akin to liquidated damages and not a demand which may or may not come into existence. Also, in Suresh Chand Goyal vs. Amit Singhal (Crl.A. 601/2015decided on 14.05.2015) the concept of security cheques were discussed. It was held as follows in the aforesaid case:
"There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 9 of 21 preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a "security cheque" to say that a complaint in respect of such a cheque would not be maintainable. There can be myriad situations in which the cheque issued by the accused may be called as security cheque, or may have been issued byway of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency,the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
6.2.3 Relying on the aforesaid dicta, a bench of Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. vs. Shruti Investments and Anrs.: 2015 (151)DRJ147 held as under:
"Thus, I am of the considered view that there is no merit in the legal submission of the respondent accused that only on account of the fact that the cheque in question was issued as security in respect of a contingent liability, the complaint under Section 138 of the NI Act would not be maintainable. At the same time, I may add that it would need examination on a case to case basis as to whether, on the date of presentation of the dishonoured cheque, the ascertained and crystallized debt or CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 10 of 21 other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the cheque that the dishonoured cheque was issued in respect of a debt or other liability."
7 About Loan Agreements and Income Tax Returns in the light of Section 138 of Negotiable Instruments Act.
In Krishan Janardan Bhutt vs. Duttatreya G. Hegde (2008 4 SCC54), Hon'ble Supreme Court held that one of the considerations to be taken into account while examining whether there has been a successful rebuttal of the presumption U/s 139 of the Negotiable Instruments Act is whether an amount of loan/advance alleged to be given by the complainant to the accused, towards discharge of which the dishonored cheque was issued, was given by way of a payee cheque, or by way of cash, in case of an amount being more than Rs. 20,000/-. Section 269 (SS) of the Income Tax Act 1961 states that any advance taken by way of loan of more than Rs. 20,000/- has to be made by way of an account payee cheque only, and Section 271 (D) of the Act states that if a person takes or accepts any loan or deposit in contravention of the provisions of Section 269 (SS), he shall be liable to pay way of penalty, a sum equal to the amount of loan deposit, taken or accepted. It was further held in Para No. 29 that Section 138 has three ingredients;
Firstly, there is a legally enforceable debt, CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 11 of 21 Secondly, that cheque was drawn from the account of the bank for discharge, in whole or in part, of any debt or other liability, which pre-supposes a legally enforceable debt, Thirdly, that the cheque so issued had been returned due to insufficiency of funds, and it was observed that the proviso appended to the said section provides for compliance of legal requirements, before a complaint can be acted upon by a court of law.
8. In the complaint and affidavit in evidence Ex. CW1/A, the complainant has stated that the accused was his friend, and ap- proached him in the third week of November 2018, requesting for an amount of Rs 12,50,000/- as a friendly loan for a period of 4-5 months for his business purposes, and that due to the friend- ship between the complainant and the accused, the complainant transferred Rs 50,000/- on 23.11.2018, and Rs. 2,00,000/- on 27.11.2018, through IMPS, from his bank account, into the bank account of the firm of the accused namely M/s Vaishno Chemi- cals, pursuant to which the accused promised the complainant to repay the said amount on or before 31.03.2019. Thereafter, ac- cused allegedly issued the cheques in question towards discharge of the aforesaid liability, which were dishonoured on presenta- tion. In his substance of accusation u/s 251 Cr.P.C., the accused has admitted the signatures on both the cheques but has stated that the other details had not been filled by him. He further stated that a person Rajesh used to work under him, and that the ac- cused had given the cheque in question to the said person called CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 12 of 21 Rajesh in a blank signed condition, who, in turn, had given these cheques to the complainant. The accused had denied any liability towards the complainant in his notice u/s 251 Cr.P.C., and had denied receiving the legal notice, even though he admitted that the address mentioned upon legal notice is his correct address. During cross-examination of CW1, the acquaintance of the com- plainant with Rajesh has been established but the suggestions and questions having been put to the complainant regarding the fact whether the cheque was given after duly filling the same or not, or whether the ink used upon the cheque is the same or whether Rajesh used to work with the accused do not come to the rescue of the accused. The fact that a person other than accused filled the cheque in question does not take the matter outside the purview of section 138 of the NI Act. As far as the complainant being contradicted with paragraph 8 of the complaint regarding the fact of him having contacted the accused regarding dishonour of the cheque in question and to seek repayment, which he had denied during his cross-examination, is concerned, the same is neither an essential ingredient of the offence u/s 138 of the NI Act nor will be relevant, if the defence evidence led by the ac- cused in the present case is considered, to which this court shall avert now.
8.1 In his examination u/s 313 Cr.p.c., the accused had denied any liability qua the cheques in question and again stated that he gave them in blank signed condition to Rajesh who was working CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 13 of 21 with him and that he was required to hand over some cheques to some clients in furtherance of some transactions in the absence of the accused. He categorically denied having any transaction with the complainant. It is only when the court again asked him as to whether he had anything else to say that he disclosed that on 28.12.2018, the complainant had transferred an amount of Rs. 50,000/-in his account at the instance of Rajesh Kumar. This is an entirely new fact introduced by the accused at the stage of exami- nation u/s 313 Cr.P.C. Nowhere in the cross-examination of the complainant, has any suggestion or question been put to the com- plainant by Ld. Counsel for accused that any amount was de- posited by the complainant in the bank account of the accused for the purpose of said person called Rajesh, and not for the accused. It needs to be noted that no mention of transfer of any such amount whatsoever has been made by the accused in his sub- stance of accusation u/s 251 Cr.P.C.
8.2 Coming to the defence evidence, the accused has appeared as defence witness DW1, and has stated in his examination-in- chief that both the cheques in question had been given by him to Rajesh Yadav for payment to his creditor, as Rajesh was his employee at that point of time. He further stated that he gave both the cheques to Rajesh in blank signed condition and does not know as to how both the cheques came into the possession of the complainant. At this juncture, the accused proceeded to make an entirely new revelation that the complainant transferred an CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 14 of 21 amount of Rs. 3 lacs in his account for Rajesh Yadav. He further stated that the complainant and Rajesh Yadav were childhood friends, and he does not know as to for what purpose the money was transferred in his account. He further stated that he had given Rs. 3 lacs to Rajesh Yadav who did not return the cheques to him. He further stated that thereafter he and Rajesh were not in talking terms and this fact also has never been revealed either during his substance of accusation u/s 251 Cr.P.C., or during the examination u/s 313 Cr.P.C., and the reason behind the same seems to be that he has failed to produce such person called Rajesh Yadav as a defence witness. In these circumstances, it cannot be said as to whether such person called Rajesh actually exists, or is a fictitious personality created by the accused, to escape the clutches of law. The statement of accused in his examination-in-chief to the effect that the complainant transferred Rs. 3 lacs in his account for Rajesh Yadav is again and entirely a new revelation, not supported by his substance of accusation u/s 251 Cr.P.C. or by questions or suggestions put to the complainant in his cross-examination or by the facts disclosed by the accused in his examination u/s 313 Cr.p.c. 8.3 In his cross examination, DW1 has admitted to not having filed any complaint with any authority regarding misuse of his cheque by the said person called Rajesh. Defence has failed to produce any evidence to support the contention of the accused that the amount of Rs. 3 lacs transferred by the complainant into CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 15 of 21 account of the accused was for the purpose of said person called Rajesh, and that the accused had handed over the said amount to the said person called Rajesh. It has not been explained as to when the complainant and Rajesh were known by the accused to be childhood friends, why did the accused get the amount from the complainant transferred in his bank account for the purpose of giving the same to any such person called Rajesh Yadav. It is also not clear as to what stopped the accused from writing the name of the payee on the cheque in question, when it was certain as to who was the person/creditor to whom the cheque had to be given. The accused having admitted to have given blank signed cheques and having received Rs. 3 lacs into his bank account from the complainant, as well as seems to have given an implied authority to any such person called Rajesh, if he so exists, or to the complainant to write the name of the payee, and the same does not constitute a material alteration as per the provisions of section 20 r/w section 81 of NI Act. The receipt of amount as well as the issuance of cheque is duly established, and the accused cannot escape liability merely by stating that the amount was for somebody else.
8.4 In these circumstances, this court is of the opinion that the accused has entirely and miserably failed to rebut the statutory presuming arising against him u/s 139 of NI Act on a scale of preponderance of probabilities, and that the cheque in question is established to have been issued by the complainant to the ac- CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 16 of 21 cused, towards the discharge of a legally enforceable debt or other liability.
9 Whether the cheque was, on presentation, dishonoured due to reasons specified in Section 138 of Negotiable Instruments Act, 1881 ?
9.1 As per Section 138 of Negotiable Instruments Act, 1881, the cheque must have been returned back as unpaid by the bank, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. But it has been held by the Hon'ble Supreme Court in various cases that "insufficiency of amount standing to credit of account/exceeds arrangement with the bank" is a genus, and dishonour for reasons such as "account closed/ blocked/ payment stopped/refer to drawer/signatures do not match/image not found" are only species of that genus. In all such cases, it shall be presumed that the amount standing to the credit of the accused's account, was insufficient to honour the cheque, as such results can possibly be brought about by the accused himself. Whether or not the dishonour was brought about by reason of insufficiency of funds is a matter of evidence, and the burden to prove that the remarks/reason for dishonour mentioned in the return memo was not due to paucity of funds, but due to some other valid cause, including absence of any debt or other liability, is upon the accused under Section 139 of the CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 17 of 21 Negotiable Instruments Act. In all such cases, the question whether or not there was a legally recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial Court has to examine, having regard to the evidence adduced before it, and keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. The offence is not made out the moment a cheque is returned back as unpaid, but after a legal notice has been issued regarding the same, and the payment has still not been made. The net effect is that all the aforesaid reasons will fall within the purview of "dishonour" within the meaning of Section 138 of Negotiable Instruments Act [Modi Cement Ltd. Vs. Kuchil Kumar Nandi (1998) 3 SCC 249, NEPC Micon Ltd. Vs. Magma Leasing Ltd. (1999) 4 SCC 253, M/s Laxmi Dyechem Industries Vs. State of Gujarat (2012) 3 SCC 375 relied upon] 9.2 In the present case, the return memo is duly stamped, and therefore, a presumption of 'dishonour' in terms of Section 138 (i.e. due to insufficiency of funds/exceeds arrangement) arises under Section 146 of Negotiable Instruments Act, 1881, which the accused has failed to rebut. The reason for dishonor has been "funds insufficient", as is clear from a perusal of the return memos Ex. CW1/3 and Ex. CW1/4 which falls within the category of reasons as afore-discussed. Hence, it can be safely concluded that the return of the cheque as unpaid was due to CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 18 of 21 reasons specified in Section 138 NI Act.
10 Whether the complainant has made a demand for payment of the amount of money in the cheque, by giving to the drawer, a notice in writing, within 30 days of the receipt of information by him, from the bank, regarding the return of the cheque as unpaid and the accused has failed to make the payment of the said amount of money to the complainant, within 15 days of the receipt of said notice?
10.1 The Hon'ble Supreme Court of India in C.C. Alvi Haji Vs. Palapetty Mohammad (2007) 6 SCC 555, has held that when the notice is sent by registered post, by correctly addressing the drawer of the cheque, the mandatory requirement of issue of the notice in terms of clause (b) of proviso to Section 138 of Negotiable Instruments Act, stands complied with, as per the statutory presumptions under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. Any drawer who claims that he did not receive the notice sent by post, can within 15 days of the receipt of summons from the Court in respect of the complaint under Section 138 of Negotiable Instruments Act, 1881, 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 the 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 summons from the Court along with copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 19 of 21 proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act.
10.2 Needless to mention, the legal notice must satisfy the requirements of Section 138. The accused must be called upon, by such notice, to pay the amount which was payable under the cheque issued by it. [Central Bank of India Vs. M/s Saxons Farms (AIR 1999 SC 3607), M/s Rahul Builders Vs. M/s Arihant Fertilisers and Chemicals & Anr. (2008) Cr.L 4520 SC relied upon].
10.3 In the present case, the complainant has duly proved legal notice Ex. CW1/5, postal receipt Ex. CW1/6 and the unclaimed/refusal intimation report Ex. CW1/8, and has been successful in raising presumption of service in due course under Section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act, which the accused has failed to rebut.
11 Whether the cheque was presented within the period of its validity or within, 3 months from the date on which it was drawn, and the complaint has been made, within a period of one month from the date when the cause of action has arisen under clause (c) of the proviso to Section 138 of Negotiable Instruments Act, 1881?
11.1 In the present case, both the requirements have been admittedly satisfied as the cheques bear the date 12.04.2019 and as per return memos Ex. CW1/3 and Ex. CW1/4 the date of CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 20 of 21 return of cheque was 16.04.2019, legal notice Ex. CW1/5 was sent on 02.05.2019, and the complaint was filed on 07.06.2019, which is within the period of one month from the date on which cause of action arose under clause (c) of proviso to Section 138 Negotiable Instruments Act, 1881.
12. Conclusion In view of the above discussion, I am of the considered opinion that all the ingredients of the offence punishable u/s 138 NI Act have been fulfilled with respect to accused, and that he has been unable to rebut statutory presumptions arising against him. Accused Sh. Parvinder Kumar S/o Sh. Rajender Kumar, R/o H. No. U-49/B, Gali no. 4, Shiv Vihar Phase 4, Karawal Nagar, Delhi-110094 is hereby convicted of the offence punishable under Section 138 NI Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the accused.
Announced in the open Court on 15.11.2022.
(Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi The judgment contains 21 pages, all pages signed by the presiding officer (Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi CIS No. 2589/19, Vikas Verma vs Parvinder Kumar Page 21 of 21