Delhi District Court
Union Bank Of India vs Dinesh Kumar Sood on 13 March, 2024
IN THE COURT OF MS. SHIPRA DHANKAR
METROPOLITAN MAGISTRATE-01, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Union Bank of India (Earlier Andhra Bank)
15A/13, Ajmal Khan Road,
Karol Bagh Branch, Delhi-110005 Complainant
Vs.
Dinesh Kumar Sood
Proprietor Maestros,
14A/33, WEA, Karol Bagh, Delhi Accused
PS: Karol Bagh
Offence Complained of or proved : Under Section 138 of Negotiable
Instruments Act, 1881
Plea of the Accused : Pleaded not guilty
Date of Institution : 26.09.2023
Date of reserving judgment/order : 22.12.2023
Final Order/Judgment : Convicted
Date of pronouncement : 05.01.2024
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 1 of 23
Digitally signed
by SHIPRA
SHIPRA DHANKAR
DHANKAR Date:
2024.01.05
17:15:43 +0530
JUDGMENT
1. This criminal complaint was filed by the Complainant against the Accused under section 138 of the Negotiable Instruments Act, 1881. ( hereinafter be referred to as the NI Act).
BRIEF FACTS:
2.2.1. The Complainant's narrative is that the accused issued a cheque of Rs 2,32,200, bearing number 249295 dated 27/02/2003 in favour of M/S Travel Centre which was maintaining a current account with the complainant bank. 2.2. Upon the request of M/s Travel Centre, the said cheque was purchased by the complainant bank for a sum of Rs 2,32,000 and the said amount was credited to the account of M/S Travel Centre.
2.3. The Complainant presented the cheque for encashment with HDFC Bank, Old Rajinder Nagar but the same was returned unpaid for the reason 'Account Closed'.
2.4. The Complainant then sent a legal demand notice to the Accused on 27/08/2003 but despite service of the notice, the Accused failed to repay the cheque amount.
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 2 of 23
Digitally
signed by
SHIPRA
SHIPRA DHANKAR
DHANKAR Date:
2024.01.05
17:15:54
+0530
The above, in short, are the sequence of events that led to the initiation of this prosecution.
APPEARANCE OF THE ACCUSED AND FRAMING OF NOTICE
3. Vide order dated 14/01/2004, this court took cognizance of offence under section 138 NI act, and summoned the Accused. Thereafter, after the Accused's first appearance, notice under section 251 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C) was served upon him where the substance of the allegation against him was read over and explained to him. The Accused pleaded not guilty and claimed trial.
4. Thereafter, the Accused was permitted to cross-examine the Complainant's AR under section 145(2) of NI Act and the Complainant's AR was cross-examined.
COMPLAINANT'S EVIDENCE
5. In order to prove complainant bank's case, its AR tendered his evidence by way of affidavit and the same is Ex CW1/A. He further relied on the following documents:
a) Ex CW1/1 Cheque in question
b) Ex CW1/2 Agreement-cum-undertaking
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 3 of 23
Digitally signed
by SHIPRA
SHIPRA DHANKAR
DHANKAR Date:
2024.01.05
17:16:03 +0530
c) Ex CW1/3 Legal demand notice
d) Ex CW1/4 Postal receipt
e) Ex CW1/5 Registered A.D. envelope containing the
legal notice
f) Ex CW1/6 Copy of Letter dated 10/03/2003
g) Ex CW1/7 Copy of statement account
6. During his cross-examination, the Complainant's AR deposed that he had been transferred to the branch of the complainant bank in July 2017 and he did not have any personal knowledge about the case. He stated that he was deposing only on the basis of the record available in the bank and that the cheque in question had been dishonoured due to the reason 'account closed' in the year 2003. He denied the suggestion that the cheque had not been signed by the accused. He stated that he could not tell the exact date on which the cheque in question was purchased by the complainant bank but it was in the 2003 after 27/02/2003. He further stated that the statement of account of M/S Travel Centre which is Ex CW1/7 had been placed on record and the amount of cheque had been credited into the account of M/S Travel Centre on 28/02/2003. He stated that he did not know if there had been an agreement with M/S Travel Centre for the purchase of cheque and on perusal of the record, he did not find any such agreement. He stated that he did not know the purpose of issuance of cheque by the accused to M/S Travel Centre, nor did he know whether the bank had enquired about the solvency of the accused or not before purchase of the Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 4 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date:
DHANKAR 2024.01.05 17:16:11 +0530 cheque in question. He admitted that Ex CW1/2A does not bear any date and seal of the returning bank. He further denied that as on 27/02/2003, the accused has no liability of any kind. The witness also tendered into evidence a certified copy of closing balance of M/S Travel Centre account which is now exhibited as Ex CW-1/X. He further deposed that the cheque in question was presented on 28/02/2003 and was returned unpaid on 04/03/2003, entry regarding which is already shown in Ex CW1/7. He further deposed that only date 26 th July is mentioned on Ex CW1/2A and he denied the suggestion that the said document was manipulated. He also stated that the cheque was again presented for encashment on 25/07/2003.
7. Thereafter, the Complainant's evidence was closed. STATEMENT OF ACCUSED UNDER SECTION 313 R/W SECTION 281 Cr.P.C.
8. Statement of the Accused under section 313 Cr.P.C. was recorded so as to allow him to personally explain the circumstances appearing in evidence against him wherein he stated that the cheque in question was stolen and misused by Debashish Sen who was his neighbour and was running the travel centre business. He stated that he came to know about the same when he received the court's notice in the present case. The accused denied any transaction with Debashish Sen. The accused further denied filling up the particulars of the Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 5 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:16:20 +0530 cheque in question or signing the same or having received the legal demand notice as the address given in the legal demand notice was wrong. He also stated that his account was closed on 16/06/2023.
9. An application under section 315 Cr.P.C was then moved by the Accused for recording of his evidence as defence witness. The said application was allowed and the Accused was examined as DW-1.
10. During his examination-in-chief, DW-1 stated that at 14A/34, he was running a shop which was in the name of his wife Ms Meena Sood. Photocopy of the ownership document regarding the said shop is Ex DW1/1 (OSR). He stated that Debashish Sain's Shop was adjacent to his shop and he used to visit his shop occasionally. The witness also stated that the cheque in question was not filled by him and does not bear his signature. He also stated that he had already closed the account on 16/06/2003. He further stated that because the cheque book was unsigned/useless, hence it was kept in open drawer. He stated that Debashish came and stole the cheque, and misused the same with the connivance of Bank Official. He stated that he had written a letter to the bank on 26/03/2021 which is Ex DW1/2 (OSR) and got his specimen signature on 05/05/2021 and the same is Ex DW1/3 (OSR). He further denied that he did not receive the legal demand notice dated 26/08/2003 as the complainant bank Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 6 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date:
DHANKAR 2024.01.05 17:16:27 +0530 deliberately sent the same to the wrong address. The witness further stated that Debashish was a fraud and many cases were pending against him all over India.
11. During his cross-examination by Ld Counsel for the Complainant, DW1 stated that he had a bank account in HDFC bank but he did not remember when he had opened the bank account. He stated that he had closed the bank account on 16/062003 and that he did not use the entire chequebook before closing the bank account as 6-7 cheques were unused and were placed by him in an open drawer in his shop at 14A/34 w.e.a. Karol Bagh. He also stated that he did not remember since when Debashish had been visiting his shop and that he used to visit once or twice in a month for 5-10 mins only. He stated that he came to know that his cheque had been stolen by Debashish when he received a notice from Court. He also stated that he did not lodge any complaint against Debashish Sen before any authority. He further stated that no other theft took place in his shop when he was in use and possession of the shop. He denied having cordial relations with Debashish Sen. He also stated that he used to receive posts at his address in WEA Karol Bagh at Shop no 14A/34 and that he had no other address in Karol Bagh except the said address. The witness was then confronted with the vakalatnama dated 03/09/2009 from court file and he admitted his signature at point A and also admitted that the address mentioned Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 7 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:16:36 +0530 in the same is 14A/37. He further stated that the address has been wrongly mentioned upon the vakaltnama, which is now Ex DW-1/D1.
12. Thereafter, the accused closed his defence evidence. FINAL ARGUMENTS
13. Final arguments were heard at length on behalf of both the parties.
14. Ld. Counsel for the Complainant reiterated all the averments made in the complaint and has argued that the Complainant has proved all the ingredients of the offence under section 138 NI Act. While laying strong emphasis on the fact that the Accused has admitted that the cheque was drawn from his bank account and that the cheque was from his own chequebook, Ld. Counsel argues that the presumption that the cheque in question was drawn by the Accused in discharge of a legally enforceable debt arises in favour of the Complainant, especially when the accused has failed to prove his defence of the cheque in question being stolen and misused. It is further contended that the Accused has miserably failed to rebut the said presumption as he has neither raised any probable defence nor has he led any evidence to show that he filed any complaint regarding the theft of his cheque by Debashish. Ld. Counsel for the Complainant also argues that the signature of the accused on the vakaltnama placed on record and the signature on the cheque in question duly match each Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 8 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:16:44 +0530 other and hence, the defence of the accused that he did not sign the cheque stands unsubstantiated, especially in the absence of the opinion of a handwriting expert. Moreover, it has been further argued that the accused has multiple addresses as is reflected from the vakalatnama, the address given by the accused himself during his examination-in-chief and the court notice sent in the address 14A/33 and 14A/34, both of which were duly served upon the accused.
15. Ld Counsel for the accused, on the other hand, has argued that the Complainant has not been able to prove his case. It is firstly argued on behalf of the Accused that the complainant bank is not a 'holder in due course' as there is no endorsement on the cheque in question and no agreement between the complainant bank and M/s Travel Centre has been placed on record to show that the cheque was actually sold to the complainant. Ld Counsel for the Accused has also argued that there is a delay of 3 days in sending the legal demand notice to the accused as the date mentioned on the return memo is 26/07/2003 but the legal demand notice was posted to the accused on 27/08/2003. It is argued that this delay in sending the legal demand notice cannot, in any circumstance, be condoned by the court. Reliance is placed on the case of B.K Sarkar v State of Gujarat [2008 Cri.L.J 1230 (Guj.)] in this regard. It is further argued that the accused never received the legal demand notice as the address on which the same was sent is that of M/S Travel Centre. It has also been argued Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 9 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:16:51 +0530 by Ld Counsel for the accused that the accused never signed the cheque in question and his signature was forged. He has relied upon Ex DW1/2 to show that the specimen signature of the accused is different from the signature on the cheque in question. Lastly, it has been argued that there is no bank seal on the return memo and hence, the same does not stand proved. DISCUSSION ON PRINCIPLES OF LAW
16. I have heard the submissions made on behalf of both the parties and have perused the record thoroughly. Before embarking upon appraisal of the facts against the evidence placed on record, it is imperative to discuss the legal standard that needs to be satisfied in order to successfully prove the commission of an offence under section 138 NI Act. This legal standard consists of the following ingredients:
a) The cheque was drawn by the Accused on an account maintained by him with a bank for payment of a certain amount of money to another person from out of that account;
b) That the cheque was issued in discharge of any debt or liability;
c) That the cheque has been presented to the bank within a period of 3 months (6 months under the old law) from the date on which it was drawn or within the period of its validity, whichever is earlier;
d) That the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 10 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date:
DHANKAR 2024.01.05 17:16:59 +0530 insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
e) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
f) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
17. The language of section 138 NI Act leaves no room for doubt that only when all the above ingredients are satisfied can the drawer of the dishonoured cheque be said to have committed an offence under section 138 NI Act. It is also pertinent to note that Section 138 of the NI Act cannot be read in isolation and has to be read along with sections 139 and 118 of the NI Act, which entitle the payee or holder in due course to certain presumptions of law.
18. Section 139 of the NI Act reads as follows:
"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, or any debt or other liability."Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 11 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date: DHANKAR 2024.01.05 17:17:06 +0530 Section 139 of the NI act, being a reverse onus clause, is an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused. This provision stipulates a presumption in favour of the Complainant with regard to the existence of a legal debt or liability.
19. Section 118(a) of the NI Act further provides that until the contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
20. The nature and scope of the abovementioned presumptions have been discussed in the cases of Hiten P. Dalal v Bratindranath Banerjee, (2002) 6 SCC 16 and Rangappa v Sri Mohan, (2010) 11 SCC 441 wherein it was observed by the Hon'ble Supreme Court of India that section 139, being a presumption of law, makes it mandatory for the court to draw a presumption in every case where the foundational facts required for raising such presumption have been successfully established by the complainant. The court further held that the Accused, against whom the presumption is raised, is not prevented from rebutting this presumption. This rebuttal, or rather the defence taken by the Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 12 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date:
DHANKAR 2024.01.05 17:17:14 +0530 Accused, the court clarified, need not be conclusively established and the Accused is required to only lead such evidence that causes the court to either believe the defence to exist or consider its existence to be reasonably probable.
Hence, the standard of proof for the Accused is that of "preponderance of probability" and not "beyond reasonable doubt". The Accused can successfully rebut the presumption raised against him by raising a probable defence or by discrediting or creating doubts in the case of the complainant. In order to do this, the Accused may either lead evidence of his own or he can simply rely on the materials submitted by the complainant.
ANALYSIS ON MERITS
21. With the position of law being as discussed above, let us now advert to the facts of the present complaint.
22. In the case at hand, the Complainant alleges that the it had purchased the cheque in question from M/s Travel Centre which had a current account with the complainant bank for a sum of Rs 2,32,000 and the said amount was also transferred to the account of M/S Travel Centre. The cheque in question dishonoured upon presentation for the reason 'Account closed'. It has not been disputed by the accused that the cheque was drawn from his bank account and from his cheque book. The first ingredient that the complainant was required to Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 13 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:17:21 +0530 show existence of is issuance of cheque. In this regard, complainant as CW-1 has deposed through his affidavit Ex. CW-1/A that accused in order to discharge his liability had issued cheque in question for Rs. 2,32,200/- in favour of the M/S Travel Centre. Accused has denied the signatures on the cheques, in his defence taken upon his statement u/s. 313 Cr.P.C.. Be that as it may, these statements/plea in itself cannot be elevated to the standards of substantive proof/disproof of the factum of non- issuance/issuance of cheque. It would be pertinent to record that apart from the statement simpliciter u/s. 313 Cr.P.C, accused has not led any other evidence to prove the factum that the cheque in question doesn't bear his signature. Although he has tendered in evidence his specimen signature obtained from the bank to show that he did not sign the cheque in question. But he has not led any evidence nor examined any witness to show that the signature on the same do not belong to him. Thus, the fact of issuance of cheque by the accused, on an account maintained by him, to the complainant can be regarded as duly proved. As far as the claim of theft of cheque in question is concerned, it has been admitted by the accused himself that he never filed any complaint against Debashish who he suspects to have stolen the cheque. The conduct of the accused is contrary to that of any prudent man who would atleast approach the police for registration of FIR if a valuable security such as cheque is stolen from him. But the fact that the accused never Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 14 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:17:29 +0530 took any steps to initiate action against Debashish renders the claim of the accused unbelievable.
23. Coming to the argument put forth by Ld Counsel for the accused regarding there being no endorsement on the cheque in question reflecting that it has been sold to the complainant by M/s Travel Centre shows that the complainant is not a 'holder in due course' within the meaning of section 9, NI Act. However, this contention seems to be misplaced. In the case of Bank of India v State and Ors 2010 VII AD (Delhi 885), the Hon'ble High Court of Delhi has held that:
"It is apparent from this definition that for being a 'holder in due course' of a bill or a cheque it was not necessary that there should be an endorsement on the bill or cheque. 'Holder in due course' has been defined as any person, who for consideration, becomes the possessor of the promissory note or cheque. There is no doubt that endorsee or the payee of such a bill or cheque are also considered as 'holder in due course', but, it is not the case that payee or endorsee alone are holders in due course. A person whose banking account is overdrawn if negotiates with his bankers a cheque, drawn by a third party, to reduce the overdraft, the banker becomes a holder for value of the cheque. The pre-existing debt of the overdraft is a sufficient consideration for the negotiation of a cheque to the banker. If a person handovers cheque to the bank with the clear understanding to the bank that cheque is towards the debt payable by the company, though the cheque remains in the name of the company but the bank becomes holder of the cheque in due course. It is not necessary that Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 15 of 23 Digitally signed by SHIPRA SHIPRA DHANKAR DHANKAR Date:
2024.01.05 17:17:40 +0530 the cheque should be endorsed in favour of the bank. What is to be seen is if the bank becomes holder for value and comes in possession of the instrument for consideration. The existing debt is always considered as a valid consideration."
24. In the present case, the claim of the complainant that the cheque in question was purchased by it from M/s Travel Centre for consideration of Rs 2,32,000 on 28/2/2003 has been duly substantiated by the statement of account of M/s Travel Centre that is available on record. This account statement also does away with the requirement for any written agreement between the bank and M/s Travel Centre as the transaction of purchase has been sufficiently proved. In view of the fact that the no endorsement is required by law and that the purchase of cheque in question for consideration has been proved, the complainant has, thus, become 'holder in due course' under section 9 of NI Act.
25. The second ingredient with respect to presentment and dishonour of cheque also stand duly proved. The law requires that he cheque was presented within the statutorily prescribed time limit and further that upon presentment for encashment the same was returned unpaid by the bank. To this effect, CW-1 through his affidavit, has deposed that cheque in dispute was presented for encashment but the same was dishonoured due to "Account Closed". In order to evince the veracity of his deposition, CW-1 has brought on record the original Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 16 of 23 Digitally signed by SHIPRA DHANKAR SHIPRA Date: DHANKAR 2024.01.05 17:17:47 +0530 cheque and return memo showing the dishonor of cheque. The accused has neither disputed nor disproved to the factum of presentment and dishonor of cheque. Thus, the presentment and the subsequent dishonor of cheque stands established. Further, the cheques have been drawn and has been presented well within the statutorily prescribed period. With regard to the argument made on behalf of the accused regarding there being no bank stamp or seal on the return memo which means that the said document stands not proved, this court finds the argument to be without force. It has been categorically held by the Hon'ble High Court of Delhi in the case of Guneet Bhasin v State of NCT of Delhi (CRL.M.C 4100/2022) that "if the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity." Hence, it was for the accused to prove that the cheque in question was never returned dishonoured and in the absence of any proof led by him in this regard, the return memo stands duly proved.
26. Next, the complainant was required to prove that he had sent a legal demand notice to the accused in writing, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 17 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date: DHANKAR 2024.01.05 17:17:54 +0530 In this regard, CW-1 deposing through his affidavit has brought on record the demand notice and postal receipt. The accused has denied the receipt of legal notice in his statement u/s. 313 Cr.P.C. However, apart from this denial simpliciter, the accused has not brought any evidence or cross-examined the complainant on this aspect. In fact, the vakalatnama of the accused which is exhibited as Ex DW1/D1 also mentions the address of the accused as 14A/33 , WEA, Karol Bagh. Although the accused has placed on record the property documents pertaining to property bearing no. 14A/34 to prove that he was not residing at the address where the legal demand notice was sent, but the said document does not in any way lead to the inference that the said property, that is, 14A/33 did not belong to the accused or that he was not residing or running a shop therein. It would not be out of place to cite the relevant legal position on the service of notice, which has been interpreted liberally inconsonance with the object of s. 138 of the NI Act.
27. Hon'ble Supreme Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 held that a person failing to pay within the 15 days of the service of summon cannot hide behind the defence of non-receipt of legal notice. The relevant extract has been reproduced below:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 18 of 23 Digitally signed by SHIPRA SHIPRA DHANKAR DHANKAR Date:
2024.01.05 17:18:02 +0530 giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
28. It is an undisputed factum that the accused had not made any payment within 15 days from the date of the receipt of summons. Further, as observed above the accused has also failed to rebut the presumption of the service of notice. Thus, the defence of non-service of legal notice is specious and is hereby rejected.
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 19 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date:
DHANKAR 2024.01.05
17:18:10
+0530
29. With regard to receipt of legal demand notice, it has further been argued on behalf of the accused that the notice was not sent by the complainant within a period of 30 days and hence, the offence u/s 138 NI Act is not made out. However, it is pertinent to note that the complainant has, in the complaint, affidavit tendered in evidence as well as the legal demand notice, averred that the cheque in question was returned dishonoured on 28/07/2003. The period of 30 days, if counted from 28/07/2003, expire on 27/08/2003, which is the date on which the legal demand notice was posted. The argument put forth on behalf of the accused that the date mentioned on the return memo is 26 th of July and should be considered to be the date of dishonour cannot be accepted as the accused has not cross-examined CW-1 on the date of dishonour of the cheque in question, nor has he examined any bank witness to prove that the date of dishonour was indeed 26th of July and not 28/07/2003. Moreover, even if, for argument's sake, the contention of the accused is accepted, the legal position remains that the legal demand notice is to be sent by the complainant after he receives information about the dishonour of cheque by the bank and not the date of actual dishonour. In the present case, the accused has led no evidence to show that the complainant received information about dishonour of cheque before and not on 28/07/2003. Hence, the argument of the accused is rejected and the legal demand notice is held to be valid.
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 20 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date:
DHANKAR 2024.01.05
17:18:17
+0530
30. Once all the ingredients of Section 138, NI Act are satisfied and the execution of cheque is admitted, section 139 of the NI Act mandates the drawing of the presumption that the cheque was issued in discharge of any debt or other liability. Reliance in this regard is placed on the recent case of Basalingappa v Mudibasappa (2019) 5 SCC 418. It is also pertinent to note that, as per the Hon'ble Supreme Court's decision in Rangappa vs Sri Mohan (2010) 11 SCC 441, the presumption mandated by the said legal provision is not just with respect to the existence of a debt or liability but rather the existence of a legally enforceable debt or liability.
31. Hence, in view of the existence of all the ingredients of Section 138 NI Act, the Complainant is entitled to the presumption under section 139 of the NI Act and hence, the same is drawn in his favour.
32. Having raised a presumption under section 139 NI Act in favour of the complainant, the only question that remains to be determined is: whether the Accused has successfully rebutted the said presumption? Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 21 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date: DHANKAR 2024.01.05 17:18:25 +0530
33. Let us now, in the light of the nature, scope and the manner of rebuttal of the presumption under section 139 NI Act as discussed in paragraph 27, assess the probability of the defence taken by the Accused.
34. The defence taken up by the accused was three-fold. Firstly, it was contended that the complainant was not a 'holder in due course'. Secondly, it was argued that the accused's alleged signature on the cheque in question was forged. Both these limbs of the accused's defence have been dealt with and discussed in the foregoing paragraphs. Coming to the third limb of his defence, which is, that the accused has denied having any liability towards M/s Travel Centre. In order to show the non-existence of such debt/liability, the accused has not placed on record any evidence. All he has argued is that his cheque was stolen from the proprietor of M/s Travel Centre, that is, Debashish and that his signature was forged by him. No criminal complainant regarding theft or forgery has been filed by the accused to substantiate this claim. It is hard to believe that a victim of offences such as forgery and theft would not take steps to prosecute the culprit. A mere bald assertion/averment regarding theft and forgery is not sufficient to rebut the presumption u/s 139 NI Act and the accused was required to prove his stance by way of substantive evidence, which he has failed to do so. Hence, this court is of the view that the accused has not been able to rebut the presumption u/s 139 NI Act.
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 22 of 23 Digitally signed by SHIPRA DHANKAR
SHIPRA Date:
DHANKAR 2024.01.05
17:18:34
+0530
CONCLUSION
35. In view of the above discussion, the defence taken by the Accused appears to be only a bare denial and does not measure up to the standard of "preponderance of probability". This court is of the considered opinion that the Complainant has successfully satisfied all the ingredients of offence under section 138 NI Act and the Accused has failed to rebut the statutory presumptions raised against him either based on the material available on record or by adducing cogent evidence.
36. Accused Dinesh Kumar Sood is, thus, convicted for the offence under section 138 NI Act.
37. Let the convict be heard separately on quantum of sentence.
38. Let a copy of this judgment be given to the convict free of cost.
39. A copy of this judgment be placed on official website of the District Court. Digitally signed by SHIPRA DHANKAR SHIPRA Pronounced and Signed DHANKAR Date:
2024.01.05 17:18:42 in the Open Court on 05.01.2024 +0530 (Shipra Dhankar) Metropolitan Magistrate-01, Central, THC, Delhi Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 23 of 23