Delhi District Court
Deepak Sharma vs Sunil Mishra on 26 October, 2023
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE, NI ACT DIGITAL COURT, NORTH EAST
DISTRICT, KARKARDOMA COURT, DELHI
JUDGMENT
DEEPAK SHARMA VS SUNIL MISHRA CC NO: 699/2022 P. S. Bhajan Pura U/s 138 NI Act a CNR No. of the case : DLNE020057382022 b Cheque number and dated : 119401 dt. 15.04.2022 c Date of institution of the case : 23.06.2022 d Name of the complainant : Sh. Deepak Sharma S/o Sh. Ramesh Chand Sharma R/o V-151/5, Arvind Nagar, near Shiv Mandir Marg, Ghonda Delhi-110053 e Name of the accused and his : Sunil Mishra S/o Sh. Maya Prakash Mishra parentage R/o H.No.K-213, gali no.4, Gautam Vihar, Garhi Mendu, Ghonda, Delhi-110053 f Offence complained of : 138 NI Act g Plea of accused : Not guilty h Orders reserved on : 06.10.2023 i Final order : Accused Sunil Mishra is convicted for offences punishable under sections 138 NI Act.
j Date of judgment : 26.10.2023
1. Vide this judgment the present complaint case for an offence punishable U/S.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
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2. It is case of the complainant that complainant and the accused are well known to each other and are having very cordial and friendly relations. In the month of December, 2021, the accused approached the complainant and requested for a friendly loan of Rs. 75,000/- for a period of three months and considering the friendly relations the complainant gave the accused the said friendly loan of Rs. 75,000/- in cash on 22.12.2021 to the accused. The accused assured the complainant the same amount shall be returned by him positively by the end of March, 2022. In the first week of April 2022 the complainant approached the accused and demanded his abovesaid amount and the accused has issued a post-dated cheque bearing no. 119401 dt. 15.04.2022 of Rs. 75,000/- drawn on Central Bank of India, Branch Kashmere Gate, Delhi and assured that the same would be encashed on its presentation.
3. On the assurance of the accused, the complainant presented the abovesaid cheque for encashment with his bank i.e. Indian Bank, Branch Yamuna vihar, Delhi -53 but the said cheque was dishonoured and returned unpaid with remarks "Funds Insufficient" vide return memo dated 19.04.2022.
4. The complainant had sent a legal notice dated 05.05.2022 to the accused through his counsel regarding the dishonour of the aforesaid cheque through registered AD, speed post and courier and the same was duly served upon the accused but the accused failed to make the payment of the cheque amount despite service of notice and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
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5. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dated 01.07.2022.
6. Accordingly, on 05.09.2022 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, accused admitted his signatures on the cheque in question, however denied the other particulars of the cheque being filled by him as it was a blank signed cheque. He had also denied having received the legal demand notice. Accused has stated that he did not know the complainant personally. Some one told him that complainant used to give money on interest and he went to him for taking loan of Rs. 10,000/- and at the time of given the loan, complainant took the cheque in question signed in blank from him as security and also the copy of his adhar card and driving licence. He had repaid the entire amount of loan to the complainant alongwith interest by paying Rs.600/- per week for twenty four weeks i.e. around Rs. 14,000/-. When he demanded his cheque back from the complainant, he refused to give the same by saying that it was only interest and threatened him to file a false case against him. Complainant has misused his security cheque. He did not owe any liability towards the complainant. He does not want to say anything else. Statement U/s. 294 Cr.P.C. of the accused is also recorded and relevant witnesses were dropped and documents admitted.
7. In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence (as the solitary witness) and relied upon the following documents:
i) Ex. CW-1/A Evidence of complainant by
way of affidavit.
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by SNEHIL
SNEHIL SHARMA
SHARMA Date:
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ii) Ex. CW-1/1 :Original Cheque bearing no.
119401, dt.15.04.2022 for a sum of Rs. 75,000/-
issued by accused in favour of complainant drawn on Central Bank of India, Branch Kashmere Gate, Delhi (fact of drawing the cheque is admitted by accused in his statement recorded Under Section 294 Cr.P.C)
iv) Ex. CW-1/2 :Original Cheque Return Memo dtd. 19.04.2022 (Admitted by accused at the time of his statement recorded Under Section 294 Cr.P.C)
v) Ex. CW1/3 : Legal demand notice dt.
05.05.2022 sent by Complainant to accused through counsel (Admitted by accused in his statement recorded Under Section 294 Cr.P.C. )
vi) Ex. CW1/4(colly) : Postal receipt dt. 01.04.21
(vii) Ex. CW1/5 (colly): Tracking Report.
(viii) Mark A : Copy of adhar card
(ix) Mark B : Copy of driving licence
8. CW1 was cross examined on behalf of the accused. During cross examination, the complainant has deposed that he is 12th passed and he is a priest and doing puja-path. He works from his home, however his father is priest in Panchayati temple. He earn a sum of Rs. 45,000/- approximately. He does not have any other work or business. He does file ITRs as he is an income tax payee. He does not remember from which date he had been filing his ITR. He has two saving account for the time being. He has bank accounts in DCB and in Indian Bank both situated in Yamuna Vihar, Delhi. He did not remember the date when he got opened his bank accounts. There was no agreement between him and the accused. He know the accused person for last 2.5 to 3 years approximately. He did not remember the exact date when he first met with the accused. He gave the loan in question to the accused from his own as he had the cash in his home. The accused came to him for the loan around 18-20 December 2021. He did not knew the exact date, time and year where from he know the accused. He had not demanded any witness from the CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 4 of 16 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.10.26 16:55:56 +0530 accused person for the alleged loan in respect of security. He got sent legal demand notice to the accused person through his counsel on 05.05.2022. He did not know the name of the father of the accused. He did not remember the date when he came in this court for hte attestation of his affidavit. He did not know to read and write the English language, however the contents of his evidence affidavit well as the petition has been read over to him by his counsel in his vernacular language. He does not know about the writer of the cheque in question as the accused has handed over him the cheque in question already filled in. He does not remember the cheque number. The cheque in question is dt. 15.04.2022. He did not remember the exact date of return memo. He had asked the accused before presenting the cheque in question into his bank, however he did not remember the exact date when he collected the returned memo from the bank. He has voluntarily stated that he had collected the same after 4-5 days later when he visited in his bank. He had admitted that the return memo has been handed over to him by the bank oficials after filling the particulars therein such as cheque number, amount etc. He did not remember the exact date when he collected the second/fresh returning memo from the bank. No application was moved in the bank for collecting the fresh returning memo. He did not remember whether the loan amount has been mentioned in his ITR or not.
9. CW1 has brought the copies of his account statements in respect of DCB saving account and Indian Bank. The copy of account statement of DCB Bank is Ex.CW1/6, the copy of account statement of Indian Bank Ex.
CW1/7 and copy of the ITR for the assessment year 2022-2023 is Ex. CW1/8.
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10. CW1 has admitted that he has mentioned about the loan in his ITR at point A on Ex.CW1/8. After seeing the Ex. CW1/8, CW1 states that he does not know whether loan of Rs.75000/- is mentioned in his loss and profit account (attached with the ITR). He has admitted that no loan amount is mentioned in his account statement. He has admitted that he has not filed the documents exhibited today at the time of filing of the present case. Question was asked from CW1 that is it correct that a notice was served upon the accused rather it was served to some Ajay. CW1 replied that the notice was sent to given address and as per the delivery report it was delivered to the same address and it is only the accused who knows about Ajay at his home.
11. He did not remember the exact date when he contacted the accused after dishonour of cheque in question. He has voluntarily stated that he had contacted the accused after 3-4 days of dishonourment of the cheque.
The evidence affidavit was attested in Tis Hazari on 05.05.2022. CW1 was confronted with Ex. CW1/A wherein date of attestation is 24.06.2022.
12. CW1 further deposed that the evidence affidavit is translated to him in Hindi language and make him understand by his counsel as he does not know the English and he signed the affidavit whatever translated by counsel. He did not remember the date of another evidence affidavit filed in this case. The cheque in question was handed over to him by the accused the details and particulars of which were already filled in, however the details of the cheque in question was not written before him by the accused. CW1 had denied all the suggestions put to him during cross examination.
13. The accused was then examined under Section 313 Cr.P.C., 1973 wherein all the incriminating evidence were put to the accused and he denied having taken loan amount in question from the complainant or having CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 6 of 16 Digitally signed by SNEHIL SHARMA SNEHIL Date:
SHARMA 2023.10.26 16:55:44 +0530 received the legal notice. Accused has stated that he had taken a loan of Rs. 10,000/- from the complainant and assured him that he will repay Rs.600/- per week and same is paid by him for six months. Around Rs.14,400/- is paid by him to the complainant. The said cheque was given by him as security cheque and it was blank and signed cheque. Accused did not opt to lead defence evidence. Accordingly, DE was closed.
14. It has been argued by Ld. Counsel for the complainant that case of the complainant is proved and cheque is also in the favour of the complainant, therefore, accused must be convicted and amount should be recovered. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in this case and that complainant has not been able to prove its case beyond reasonable doubt against the accused.
15. I have heard ld counsel for the complainant and Ld. Defence counsel for accused & considered the respective arguments as well as gone through case file very carefully.
16. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 7 of 16 Digitally signed by SNEHIL SHARMA
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iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
17. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears his signatures, however he denies the other particulars fulfilled by him but admits that the same was given to the complainant as a security cheque in lieu of the debt taken by him. Though he has disputed the debt amount. Therefore, it can be said that the cheque was drawn by him in favour of the complainant. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled.
18. Accused has further admitted the fact of dishonour of the cheque in question, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant. Accused has further admitted the fact of receiving the legal demand notice sent to him by complainant during his statement recorded under section 294 Cr.P.C. but denied the same while framing the notice and in statement U/s. 313 Cr.P.C. Perusal of record shows that Ex.
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2023.10.26 16:55:31 +0530 CW1/4 (colly) and CW1/5 (colly) shows that the legal notice is duly served at the address of the accused. Also as the accused has appeared before the court and matter came in his knowledge and documents were supplied to him after summoning, still accused chose not to reply back the legal notice or to pay the due amount. Moreover, the address mentioned at legal notice is same as filled in bail bonds and postal receipts also show that legal demand notice were served at the given address. So it can be rightly said that he has received the legal notice. Hence, essential ingredients (v) and (vi) also stand proved.
19. In the landmark decision of Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555 held that as under:-
"Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court along-with the copy of complaint Under Section 138 of the Act, can not 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 G. C. Act and 114 of the Evidence Act."
20. Now coming to the last and the remaining core ingredients (ii) and (vii) of Section 138 of NI Act as discussed above and the real issue of controversy herein i.e. whether the cheque in question was issued in discharge of any debt CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 9 of 16 Digitally signed by SNEHIL SNEHIL SHARMA Date:
SHARMA 2023.10.26 16:55:22 +0530 or liability, whole or in part and whether the same is a legally enforceable debt.
21. In the present case, it is submitted by the accused as argument that the cheque was given for security purpose to the complainant as he has taken Rs. 10,000/- loan from the complainant. Same was admitted in notice framing and while recording statement of accused. However, accused has further stated that he had returned the entire amount in weekly EMIs. As the accused has admitted the taking of loan, it is also on record that even after filing a case the accused has not repaid the cheque amount to the complainant and choose to contest the case. During the case while framing the notice or in mediation also he has failed to inform the ultimate date of the payment. Also, no document or witness or whatsapp chat is produced by the accused to prove the repayment to the complainant. Further, no document or witnes or whatsapp chat or call recording etc. is produced by the accused in support of his contention that the loan amount was of Rs.10,000/- only and complainant has misused the cheque. No repayment slip or no repayment message or no digital record of equal monthly money sent to the complainant is filed by the accused for the perusal of the court and for his support. No evidence is produced by accused to show that he received only Rs. 10,000/- from the complainant as against Rs. 75,000/- alleged by the complainant. Even no reply of legal notice is sent by the accused to the complainant.
22. With respect to the point of blank cheque raised by the accused, it is pertinent to mention that Section 20 of the NI Act talks about inchoate instruments. As per this provision if a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up the particular in it and complete the cheque, thus making the draw liable for the payment mentioned in it. It is immaterial CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 10 of 16 Digitally signed by SNEHIL SNEHIL SHARMA Date:
SHARMA 2023.10.26 16:55:15 +0530 that the cheque may have been filled in by any person other than the drawer, when the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted. At this stage, reference may be sought from the decision of Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque in a proceeding u/s 138 of the Act has interalia held the following:
"If a signed blank cheque is voluntarily presented to a payee,towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
23. It is a settled of the proposition of law that a cheque issued as security, pursuit of financial transaction, cannot be considered as a worthless piece of paper. It is given to ensure the fulfilment of an obligation undertaken. If a cheque issued to secure repayment of a loan advanced and if the loan is not repaid on or before the due date, the drawee would be entitled to get the cheque for payment, and if such a cheque is disordered, the consequences contemplated under section 138 NI act would follow. Reliance is placed upon Sripati Singh v. State of Jharkhand,2021 SCCOnline1002 . Further as to the plea of cheque being a security cheque, it was held in ICDS v. Beena Shabir & Anr. (2002)6 SCC 426, that security cheques would also fall within the purview of section 138 NI Act and a person cannot escape is liability unless he proves that the debt or liability for which cheque was issued as security is satisfied otherwise.
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24. In this case, the statutory presumptions under section 118(a) and 139 would be raised in favour of the complainant. Since, the accused has admitted the execution of impugned cheques and signatures on cheque in question, the aforementioned statutory presumptions would be raised in favour of the complainant regarding the fact that the impugned cheques have been drawn for consideration and issued by the accused in discharge of legally enforceable debt. Also, as per complainant accused gave him filled cheque which is also not objected, get verified and tested by the accused.
25. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 12 of 16 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.10.26 16:55:03 +0530 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."
It is explicit in the NI Act that the said presumption shall remain untill contrary is proved.
26. Moreover, as the complainant has deposed the date of money given to the accused i.e. around 18th to 20th December 2021. same is drawing adverse inference aganst the accused as the accused has not challenged the said date or has not stated that what and where he was present on the given date. No plea of alibi is taken by the accused to prove that he has not met the complainant on the abovesaid date. Accused has neither disputed the date of 22.12.2021 i.e. loan giving date as alleged by the complainant nor disputed the date of handing over the post dated cheque i.e. in the first week of April 2022.
27. Also perusal of record shows that cheque returning memo shows that reason of returning the cheque "funds insufficient" and not payment stopped by the drawer. If the accused had already repaid the amount and he had not taken any receipt from the complainant then also he was having opportunity to stop the payment which he had not, showing that accused was under
liability to pay the amount to the complainant.
28. Doubt raised upon the financial capacity of the complainant is not sustainable as the complainant has produced his account and ITR Ex. CW1/6, CW1/7 & CW1/8 proving his financial capacity of the cheque amount. No doubt is raised upon the story deposed by the complainant. As CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 13 of 16 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.10.26 16:54:57 +0530 per the complainant cheque in question was handed over to the accused already filled in but the accused has not challenged the same by calling the handwriting expert examination to prove that it is the complainant who has filled the same or to prove that he has not filled the same. Furthermore, the accused has stated that he does not know the complainant, rather someone told him that complainant used to give money on interest. Here, accused has not deposed/brought "someone" to the court to prove veracity of his version. Furthermore, the accused has not proved that the amount taken by the accused himself was not Rs. 75,000/- and it was only Rs.10,000/-. Mostly all the facts are admitted by the accused during the notice, U/s. 294 Cr. P.C. and in his statement recorded U/s. 313 Cr.P.C. Once the cheque is drawn in favour of the complainant, it was the duty of the accused to keep money in his bank account to discharge his legal liability against the complainant or if he has already paid the money he should ask the complainant in writing(documentary or through whatsapp) to return the cheque. However, as the accused has admitted himself that he had taken the loan and complainant proved that cheque was given to repay the loan, also sufficient to prove that cheque was issued in lieu of legal and enforceable debt. Non-discharge of the liability of cheque amount by the accused is not a ground of acquittal without any evidence/witness/record etc. Mere verbal submission of the accused is no evidence.
29. In addition to the accused has also raised objection related to the affidavit etc. dates. However, undersigned is not in agreement with the argument of the accused as the same is matter of record and these contradictions are minor contradictions related to memory and post offence procedural one and hence not fatal to the case. There exists no circumstances to create any doubt or confusion giving benefit of doubt to the accused. It is CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 14 of 16 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.10.26 16:54:48 +0530 necessary to mention here that no reply/clarification of legal notice was asked by the accused from the complainant.
30. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. As per the facts and circumstances of this case accused has not led any cogent and believable evidence to support his defence.
31. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
32. Moreover, it is also not the case of the accused that the money was never advanced to the him or the complainant has misused the cheque or his cheque has been misplaced/lost or his cheque has been stolen, for which a complaint has been filed or liability amount is wrongly mentioned on the cheque or the accused has not drawn the cheque in favour of the complainant CC NO. 699/22 Deepak Sharma vs Sunil Mishra Page 15 of 16 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.10.26 16:54:43 +0530 or cheque was issued for some other arrangement or he has asked several times to complainant to return the cheque etc. No ommision or contradiction is also brought on record by the accused. No circumstances are shown which can attract benefit of doubt in favour of the accused.
33. Keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per section 118(a) and section 139 of NI Act clearly come in picture for the favour of complainant and his burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged and the accused has miserably failed to discharge his reverse onus. Accordingly, the ingredients mentioned at (ii) & (vii) of Para No. 16 of this judgment are also fulfilled.
34. In my view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability and has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused Sunil Mishra is, thus, held guilty and stands convicted for the said offence.
Digitally signed by
SNEHIL SNEHIL SHARMA
SHARMA Date: 2023.10.26
16:54:26 +0530
Announced in Open Court (SNEHIL SHARMA)
today on 26.10.2023 MM (NI Act) Digital Court,
NORTH EAST,KARKARDOOMA
Copy of judgment be given free of cost to the convict.
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