Delhi District Court
The Accused Issued A Cheque On Account ... vs Unknown on 27 February, 2020
IN THE COURT OF MS. SURPREET KAUR, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 529664/2016
Hari Chand Batra
S/o Sh. K.R. Batra
C/o C-10/50,
Sector-15, Rohini,
Delhi-110085 ............Complainant
Versus
Ashok Saxena/Kanojia
R/o D-15/4, Sector-7,
Dwarkadheesh Apartments,
Rohini,
Delhi-110085 .............Accused
JUDGMENT
(1) Name of the complainant, : Hari Chand Batra
parentage and address S/o Sh. K.R. Batra
C/o C-10/50,
Sector-15, Rohini,
Delhi-110085
(2) Name of accused, : Ashok Saxena/Kanojia
parentage and address R/o D-15/4, Sector-7,
Dwarkadheesh Apartments,
Rohini,
Delhi-110085
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 18.03.2009
(6) Date of conclusion of arguments : 31.10.2019
(7) Date of Final Order : 24.02.2020
(8) Final Order : Conviction
Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 1
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
Itt is contended by the complainant that the accused has been known to him for last several years and on account of that acquaintance, the accused approached him for grant of financial assistance/loan and promised to repay the said amount and interest towards repayment of the said loan amount. In discharge of liability, the accused issued three cheques bearing no. 266487 dated 27.01.2009 for a sum of Rs. 50,000/-, bearing no. 266488 dated 28.01.2009 for a sum of Rs. 50,000/- & bearing no. 266489 dated 25.01.2009 for a sum of Rs. 50,000/- drawn on Punjab National Bank, Rohini, Delhi to the complainant. When the aforesaid cheques were presented for encashment, the same were returned dishonoured with the remarks "funds insufficient" vide cheques return memos dated 03.02.2009. After dishonour of the aforesaid cheques, complainant issued a legal notice dated 18.02.2009 to the accused through registered A.D. and UPC post.
Despite that the accused neither replied to the legal notice nor made any payment of cheques amount. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, three cheques bearing no. 266487 dated 27.01.2009 for a sum of Rs. 50,000/-, bearing no. 266488 dated 28.01.2009 for a sum of Rs. 50,000/- & bearing no. 266489 dated 25.01.2009 for a sum of Rs. 50,000/- drawn on Punjab National Bank, Rohini, Delhi as Ex. CW-1/1, Ex. CW-1/2 & Ex. CW-1/3 respectively, respectively cheques returning memos dated 03.02.2009 as Ex. CW-1/4 & Ex. CW-1/5, legal notice dated 18.02.2009 as Ex. CW-1/6, postal receipt as Ex. CW-1/7 and UPC receipt as Ex. CW-1/8.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 01.03.2013 to which he pleaded not guilty and claimed trial. He took the defence that there was a property deal between him and the complainant and as a token three blank signed cheques were issued to the complainant around twelve years ago and the complainant assured him that if the deal could not be Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 2 materialized, the aforesaid cheques would be returned back. He stated that the deal was not materialized and the complainant misused his cheques. He denied having any liability towards the complainant. He further denied receiving of legal notice regarding the cheques in question.
5. Thereafter, the complainant examined only himself in post notice evidence. He adopted his pre-summoning evidence towards examination in chief. During cross- examination, the complainant stated that he came to know the accused through a person namely Sh. Deepak Kharbanda around 8-10 years back. The complainant also stated that the complainant used to deal in the property business with Sh. Deepak Kharbanda but only rarely. The complainant stated that he met the accused when the accused used to sit in one of the nearby offices of the other property dealers namely Suri Property in the locality of the complainant as he also used to visit those offices. It was further stated by the complainant that he used to run a property dealing business in the name of Batra Associates for the period 2003 to 2009 with a gap from 2004-2006 when the complainant discontinued the business due to his bypass surgery. According to the complainant, the accused had approached him for taking loan several times, however, when the accused approached him again for a loan in the month of July 2008, the complainant advanced loan to him for 2-3 months. The complainant further mentioned that no written agreement was executed between him and the accused. Further the cheques in question were given by the accused to the complainant in October 2008 and the accused filled in name of payee, amount, and date in the cheque. He denied the suggestion that the cheques in question were given by the accused 12 years ago for the business purpose of property dealing and the same had not been returned by him on excuse of him misplacing those cheques due to change in his residence from Rohtak to Sector-15, Rohini. The complainant further stated that he did not remember whether the cheques in question bore a four digit or 16 digit account number of the accused.
6. On 09.10.2014, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence was put to him to which accused took the defence that he never took any loan from the complainant. He stated that the cheques in question were given by him to the complainant regarding some Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 3 property transaction. He admitted his signatures on cheques in question. He denied having filled in name of payee, date, and other contents in the cheques in question. He stated that as the transaction regarding the property could not be fructified, he does not have any liability towards the complainant. He stated that the complainant promised him to return the cheques in question whenever he would find the same. He further stated that the complainant has misused the cheques in question by filing the present case against him. The accused preferred to lead defence evidence.
7. In defence evidence, the accused examined himself and one witness namely Sh.Vinod Khurana, Officer, Punjab National Bank.
The accused as DW-1 in his examination in chief stated that he came in contact with the complainant through a person namely Sh. Deepak Kharbanda who was doing business of property dealing with the complainant. The accused stated that the complainant developed good relations with him and they started doing business of property dealing together. According to the accused, the cheques in question were given to the complainant around 14-15 years back with only the columns of signature and amount filled by the accused during a property dealing transaction for finalizing a deal.
During cross-examination, the accused stated that the cheques were given in the presence of Sh. Deepak Kharbanda in the office of the complainant and when the deal did not finalize the accused asked the complainant to return the cheques several times. However, the same were not returned and the complainant stated that he had misplaced those cheques due to shifting of his house. The accused submitted that he did not file any complaint against the complainant for not returning those cheques as he trusted the complainant and believed his reason. Further he also did not give any direction to his banker to stop the payment regarding the cheques in question. The accused further stated that he stopped doing the business with the complainant after that and it was only when he was arrested by the police that the present matter came to his knowledge. He then realized that the cheques have been misused by the complainant. The accused further stated that the cheques in question were not given by him in October 2008 but rather 14- 15 years ago which is evident with the mention of his four digit account number in the cheques as the bank used to maintain four digit account number of the account holders 14-15 years ago as opposed to 16 digit account number being maintained as today.
8. Sh. Vinod Khurana, Officer, Punjab National Bank as DW-2 was examined and discharged without cross-examination despite given opportunity. He stated in examination Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 4 in chief that as per bank record the cheque book no. 266481(SCD) to 266500 was issued on 09.08.2000 in the name of Sh. Ashok Saxena, account no. 1379 and the said cheque book issuance record was Ex. DW-2/1. He stated that the cheques in question Ex. CW-1/1 to Ex. CW-1/ 3 are pertaining to the said cheque book issued on 09.08.2000. He stated that the account maintained by Ashok Saxena was previously in four digit account number i.e. 1379 and the same was converted into 16 digit account number i.e. 3028000100013790 on 29.05.2005 the said account converting report was Ex. DW-2/2. He stated that the account number mentioned as 1379 on the cheques in question was filled up by the bank. He further stated that later on when the cheque is being presented for encashment then on enquiry 16 digit account number was provided to the customer presenting the cheque who would then mention the said 16 digit number on the cheque himself.
9. Thereafter, despite there being another witness namely Sh. Deepak Kharbanda mentioned in the list of witness provided by the accused, the accused closed the defence evidence. On 25.07.2016, he moved an application under Section 311 of Cr.P.C. which was allowed by the court vide order dated 18.11.2016. Accordingly, Sh. Deepak Kharbanda as DW-3 was examined, cross-examined and discharged. He stated in his examination in chief that the complainant and him were in the business of property dealing. He further stated that both the complainant and the accused were his friends and used to visit his office. According to him, the complainant and the accused met each other at his office, became friends and started the business of property dealing together from the office of the complainant. He further submitted that one day the accused called him and told him that the complainant was not returning his cheques to which he responded that the complainant would return back the cheques. The witness also stated that during that time the complainant shifted his house to Rohini. It was further submitted that the accused approached the witness and informed him that the complainant had misused his cheques and implicated him in a false case therefore, the witness had appeared before the court to inform the court about the reality of the facts. According to the witness, the complainant used to take cheques from the accused and the complainant used to give cheques as bayana to their clients and after selling the property, the accused and the complainant used to divide the profit of the transaction between them.
During cross-examination, he stated that he dealt with the business of property dealership in partnership with the complainant. However, he has no documentary proof regarding the same. The witness stated that the cheques were handed over by the Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 5 accused in his presence, however, he did not have any documentary proof of the same. He further stated that in his knowledge there is no liability of the accused towards the complainant and that there was a dealing of a Janta flat where the complainant and the accused were the purchasers. However, there was no sale deed executed and registered between seller and the purchaser. There was a bayana receipt, however, the witness is unable to produce bayana receipt. He denied the suggestion that he was asked by the accused to make a false statement in the court.
10. Thereafter, final arguments were addressed on behalf of both the parties. It was submitted by Ld. Counsel for the complainant during final arguments that loan of Rs.1,50,000/- was taken by the accused from the complainant. It was contended by Ld. Counsel for the complainant that three cheques were given by the accused in discharge of his liability and the same got dishonoured on presentation. It was further submitted that legal notice regarding the same was given, however, despite that no payment was made by the accused. It was contended that loan amount and signatures on the cheques in question has already been accepted by the accused. It was contended that complainant has fulfilled all the ingredients of offence under Section 138 of the Act and presumption of law lies in favour of the complainant. The complainant relied upon judgments:C.C. Alavi Haji v. Palapaetty Muhammed & Anr. [(2007) 6 SCC 555], Prakash Jewellers v. A.K. Jewellers [2002 (99) DLT 244], Rangappa v. Sri Mohan [(2010) 11 SCC 441], Johnson Scaria v. State of Kerala [II (2007) BC 450], P.V. Constructions v. K.J. Augusty [2007 CriLJ 154], Ajit v. Smt. Kriti & Anr. [I (2005) BC 315], Mulammoottil Consumer Crdit v. Sreenivassan [2006 (4) KLT 543], Francis v. Pradeep [2004 CriLJ 3827], Ramakrishnan v. Parthasaradhy [III (2003) BC 241], A.R.M. Nizmathuallah v. Vaduganathan [2008 CriLJ 880], K.N. Kittusamy v. A.P. Shubhramaniam & Anr. [Crl. A. No. 399 of 2015], V.R. Shresti v. Bhaskar P. [Criminal Appeal No. 2109 of 2017], Suresh Kumar Joon v. Mool Chand Motors & Ors. [CS (OS) 389/2009] &A.V. Murthy v. B.S. Nagabasavanna [(2002) 2 SCC 642]. Same are perused and taken into consideration.
Per contra, it was submitted by Ld. Counsel for the accused during final arguments that the accused never took any loan from the complainant and the cheques were issued for the purpose of a property deal which never materialized. It was contended that there is no specific mention in the complaint as well as evidence by affidavit as to when the accused approached the complainant for the loan and for what amount. It was further submitted that the complainant did not return the cheques despite the accused asking for the same several times and misused them by filing this false case. The accused asserted Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 6 that the present case is a false one as the cheques were given in the year 2000 and presented in year 2009 which is why the cheques carried four digit account number and not sixteen digits. The accused also contended that he never received the legal notice with regard to the present case and that there is no proof of service of legal notice to the accused on record thereby pushing the present case outside the scope of offence under Section 138 of the Act as pre-requisite of section 138 (b) of the Act has not been fulfilled.
11. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
12. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
13. The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made: (a) of consideration
- that every negotiable instrument was made or drawn for consideration, and that every Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 7 such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - 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".
14. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. The court has to first see as to whether the complainant has proved that the accused issued the cheques in question towards a legal liability or not from the account maintained by him. In this regard, complainant has relied upon his affidavit Ex. CW-1/A. Further, accused throughout trial admitted his signatures on cheques Ex. CW-1/1 to Ex. CW-1/3 which by itself is sufficient proof of issuance of cheques towards a legal liability. In this regard, presumption under Section 139 of the Act is raised in favour of the complainant. In the present case, the accused has admitted in the notice under Section 251 Cr.P.C. that the cheques in question bear his signatures and he issued the same in favour of the complainant. Reference can be made to Judgment of Apex Court in Rangappa (supra) that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant." Defence taken by the accused is that he came to know the complainant through a person namely Sh. Deepak Kharbanda and they became good friends. The accused then used to do business of property dealing with the complainant where he used to give blank cheques by filing the amount and signature in order to finalize the property dealings. The accused in his examination in chief stated that the cheques in question were given to the complainant around 14-15 years ago with only the amount filled by him for the finalization of a property deal that the complainant and him were doing together and not in October 2008 as contended by the complainant. The accused examined one bank witness who brought the record viz. cheque book issuance record Ex. DW-2/1 regarding cheque book no. 266481(SCD) to 266500 which was issued on 09.08.2000 in the name of Sh.Ashok Saxena, account no. 1379 and the account converting report Ex. DW-2/2 with details regarding account being converted into 16 digit account number i.e. 3028000100013790 on 29.05.2005. The accused also stated that the cheques were given in the presence of Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 8 Sh.Deepak Kharbanda in the office of the complainant. For this, the accused examined Sh.Deepak Kharbanda as DW-3 who supported the version of the accused and stated that he used to do the business of property dealing with the complainant together. The accused contended that the deal for which the cheques in question were issued did not materialize and despite him asking the complainant to return his cheques several times, the complainant never returned the same and informed the accused that the cheques in question were misplaced by the complainant due to shifting of his house. The accused further took the stand that the complainant misused these cheques in question and he came to know the present case only when the police arrested him. The accused stated that he did not receive the legal notice and there was no proof on behalf of the complainant regarding the service of the legal notice. During cross-examination, the accused contended that he had written the amount in words and figures and signed the cheques on his own before giving it to the complainant for the property deal. The accused further stated that he did not make any complaint against the complainant about returning the cheques because he trusted the complainant. The accused also stated that he did not give any direction to his bank to stop the payment regarding the cheques in question even after coming to know about the misplacement of the same.
15. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
16. This Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35 had occasion to consider Section 118(a) of the Act. This Court held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that the execution is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No.12 following has been laid down:-
"12. Upon consideration of various judgments as noted hereinabove, the Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 9 position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
17. In Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513] this Court examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph No. 20, following has been laid down:-
"20. 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 disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 10 At the same time, it is clear that bare denial of the passing of the 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, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist."
18. In other judgment reported as Rohitbhai Jivanlal Patel v. State of Gujarat and Another this Court held as under:
"20. On the aspects relating to 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 nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, 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 fulfill the requirements of rebuttal as 8 AIR 2019 SC 1876 envisaged under Section 118 and 139 of the NI Act."
19. It is now well settled as evident by plethora of judgments that the presumption raised under Sections 118(a) & 139 of the Act is a rebuttable presumption and the accused need not come into the witness box or produce a strong proof to rebut the presumption as the rebuttal can be achieved through preponderance of probabilities unlike the complainant. However, a mere submission that the case presented by the complainant is false and that the cheques of the accused have been misused by the complainant is not enough without any evidence of the rebuttal presented on record. Mere denial without any corroborative evidence would not deprive the complainant of the benefit bestowed on him under the special provisions of this Act. In the present case, it is submitted by the accused that the cheques were given to the complainant in the year 2000 and not in year 2008, however, there has been no evidence produce on record to prove the same. The evidence presented on record by the accused in this regard in the form of Ex.DW-2/1 and Ex. DW- 2/2 merely proves that the cheques in question were issued from a cheque book issued to the accused back in year 2000 by the bank. Neither Ex. DW-2/1 nor Ex. DW-2/2 assists the accused in proving that the cheques were issued in year 2000 and not in the year Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 11 2008. Issuance of a cheque book at a certain time has no bearing on when the cheques are issued out of that book. The accused further did not place any evidence to show any steps taken by him to recover the given cheques from the complainant either in the form of any written communication or in the form of any complaint filed against the same for a period of 14-15 years. It is also accepted by the accused that he never gave the directions to the banker to stop the payment with regard to the cheques in question after getting to know that the same have been misplaced by the complainant which this court fails to understand as the same is expected from any prudent man. Further, the contention of the accused that the complainant did not mention anywhere in the complaint and affidavit the date and time as to when the accused approached the complainant for taking loan and as to when the loan was advanced, in the opinion of this court, is not fatal to the case of the complainant since the complainant is a senior citizen.
It is further mentioned by the accused that he only signed the cheques and filled in the amount as opposed to him filing the columns of date, name of the payee alongwith amount and signatures as claimed by the complainant. However, no steps were taken by the accused to rebut the claim made by the complainant through any application for the expert examination of the concerned cheques. The accused also examined Sh. Deepak Kharbanda as a defence witness, however, nothing favourable emerged from the examination as the witness Sh. Deepak Kharbanda also failed to substantiate his testimony with any cogent proof. It is the testimony of Sh.Deepak Kharbanda that he used to work with the complainant in the business of property dealing as partners, however, no proof of that same was placed on record. Further Sh. Deepak Kharbanda submitted that the cheques in question were given to the complainant by the accused before him and no proof of the same has been placed on record. More importantly, Sh. Deepak Kharbanda mentioned a deal concerning a Janta Flats where the complainant and the accused were the buyers and further submitted that there was a bayana receipt in existence for the above mentioned transaction, however, the same could not be produced leaving the accused again empty handed in terms of substantial evidence. It is also pertinent to mention here that surprisingly there has been no mention of the above said transaction by the accused during the entire case.
20. The accused has also taken the defence that he did not receive the legal notice. During the trial, accused has never challenged the correctness of his address. He merely stated that it was not delivered to him. Personal delivery of notice is not a precondition for launching prosecution under Section 138 of the Act. In such cases, sending of notice at Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 12 the correct address is sufficient. It is not necessary that the notice must be received by the drawer of the cheque. The accused challenged the fact of non receipt of notice, however, he did not bring any cogent evidence showing non delivery of the same. The legal notice having been dispatched by Registered Post Ex. CW-1/7, there arose a presumption of due service as per Section 27 of the General Clauses Act, 1897 1 and Section 114 of the Indian Evidence Act, 18722 and now it was incumbent on the accused to lead evidence to prove that the same was not served on him. However, no evidence has been led to rebut the presumption of deemed service. In such circumstances, the legal notice can be presumed to have been served.
Reliance can be placed upon D. Vinod Shivapa v. Nanda Belliappa, 2006 (6) SCC 456, wherein it was held that when a notice is sent by the registered post and is returned with the postal endorsement 'refused' or 'unclaimed' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is as question of fact to be decided on the basis of evidence. In the case of C.C. Alavi Haji (supra), it was held that any drawer who claims that he did not receive the notice sent by post, can, within fifteen days of receipt of summons from the Court for complaint filed under Section 138 of the Act, make payment of cheque amount and makes submission to this effect before the Court and accordingly, the complaint is liable to be rejected. Where no payment is made under the above circumstances, such person can not contend that there was no proper service of notice as required under Section 138 of the Act, by ignoring statutory presumption to the contrary under Section 27 of The General Clauses Act and Section 114 of The Evidence Act. In view of the said interpretation, deemed service is to be accepted by the Court unless it is rebutted by leading cogent evidence.
21. In a negotiable instruments case, onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely taking a bald plea by stating that the cheques in question were given by him to the complainant as token cheques without the same being corroborated by any evidence is not sufficient to rebut the presumption.
1 Section 27 : Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 2 Section 114 : The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particulars case.
Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 13
22. At the time of final arguments, Ld. Counsel for the accused also took a stand that there was no evidence placed on record that proved the financial capability of the complainant to advance the loan of the amount in question to the accused. I do not find merits in the submission of Ld. Counsel for the accused. Failure to disclose the loan in the ITRs and non filing of documents are not fatal to the case of the complainant especially when the same was never asked to be furnished by the accused throughout the trial. For this, reliance be placed on one judgment Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that :
"24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.".
Thus, there is no force in the submission of Counsel for the accused.
23. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
24. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
25. Let the accused be heard on quantum of sentence.
26. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by SURPREET KAUR SURPREET Date: KAUR 2020.02.27 15:46:36 +0530 ANNOUNCED IN THE OPEN COURT (SURPREET KAUR) TODAY i.e. 24th FEBRUARY 2020 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 14 IN THE COURT OF MS. SURPREET KAUR, MM, NORTH-WEST, ROHINI COURTS, DELHI. CC No. 529664-2016 Hari Chand Batra v. Ashok Saxena/Kanojia 27.02.2020 ORDER ON SENTENCE Present: Complainant with Ld. Counsel Sh. Anuj Goel. Convict with Ld. Counsel Sh. Digvijay.
Arguments heard on the point on sentence. It is stated by Ld. Counsel for the convict that convict is the senior citizen and suffers from various ailments. Copy of medical record of the same has been furnished by Ld. Counsel for the convict for perusal of the court. It is further submitted that the convict is having family consisting of a daughter of marriageable age, another married daughter, a son and his wife. It is further submitted that the convict has been regular in the appearances before the court and has not missed any court date since year 2013. It is further submitted that the convict is not earning anything, therefore lenient view may be taken.
Per contra, Ld. Counsel for the complainant has submitted that the matter pertains to the year 2009 and relates to loan transaction and the convict has defrauded him as cheques in question was dishonored. It is further submitted by Ld. Counsel for the complainant that the complainant is also a senior citizen and suffers from various ailments.
I have heard the submissions and carefully perused the record. Complaint regarding present cheques in question is pending since 2009 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of Probation of Offenders Act as the matter pertains to the year 2009 and cheque bouncing cases are on high rise and releasing the convict on probation would not have deterrent effect in the society.
Considering the totality of circumstances, convict is sentenced to simple imprisonment till the rising of the court and is further ordered to pay fine as compensation to the complainant for an amount of Rs.2,20,000/- (Rs. Two lakh twenty thousand only) under Section 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 01 months.
Contd.....2 Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 15 ::2::
At this stage, an application under Section 389(3) of Code of Criminal Procedure has been moved on behalf of the convict for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of 30 days from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 20,000/- with surety of like amount. Requisite bail bonds furnished. Same are accepted till 28.03.2020.
Copy of this order be given to the convict free of cost.
Digitally signed by SURPREET SURPREET KAUR KAUR Date: 2020.02.27 15:46:23 +0530 Announced in the open (SURPREET KAUR) court on 27th February 2020 MM (N/W), Rohini Courts, Delhi. Hari Chand Batra v. Ashok Saxena/Kanojia CC No. 529664/2016 Page no. 16