Delhi District Court
Uco Bank vs Harsh Ved Vyas on 26 August, 2016
IN THE COURT OF Ms. NABEELA WALI
METROPOLITAN MAGISTRATE (EAST), KKD, DELHI
Complaint No. 56745/16 (old No. 57/16)
PS: Krishna Nagar
UCO Bank
through its Chief Manager
Sh. Y.K. Sharma
C-6/1 Krishna Nagar,
Delhi-110051 ........Complainant
VERSUS
Harsh Ved Vyas,
S/o Sh. Y.N. Gupta,
Proprietor of M/s Indigo Travels & Tours
R/o B-4/1 Krishna Nagar,
Delhi-110051 ........Accused
Complaint under section 138 of the Negotiable
Instruments Act
Offence complained of : U/s 138 NI Act
Date of commission of offence : 16.08.2009
Plea of Accused : Not guilty
Date of decision of the case : 26.08.2016
Final Order : Conviction
CC No. 56745/16 (old No. 57/16) 1 /17
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. Vide this Judgment I shall dispose of the present complaint U/s 138 of Negotiable Instrument Act, 1881 (in short NI Act) filed by complainant UCO Bank through its Chief Manager Sh. Y.K. Sharma against accused Sh. Harsh Ved Vyas. The genesis of litigation in the present case is, that complainant is a Nationalized bank and accused Harsh Ved Vyas being proprietor of M/s Indigo Travels & Tours maintained current account bearing no. 29647 with the complainant bank. As alleged, during the year 2007-2008 complainant bank sanctioned a temporary overdraft facility to the accused for a sum of Rs.15,00,000/- at the interest of 17.50% per annum, on his current account bearing number 29647. Against repayment for the overdraft facility, accused issued a cheque bearing no. 204780 dated 12.03.2009 for Rs.15,08,420.79 drawn on UCO Bank, Krishna Nagar, Delhi branch in favor of the complainant. The said cheque on presentation was dishonored twice vide return memo dated 12.03.2009 & 10.06.2009 respectively with the endorsement, " Funds Insufficient ". Thereafter complainant sent legal demand notice dated 29.06.2013, however, despite service of legal demand notice, accused did not make any payment in discharge of his liability.
2. Cognizance of the offence U/s 138 NI Act was taken by Ld. transferor court and process was issued against the accused. On appearance of the accused and on furnishing copies of the document to him, the accused was examined under section 251 Cr.P.C, putting the substance of the accusations leveled against him. The accused pleaded not guilty and claimed to be tried.
3. To substantiate its case, complainant during the stage of post summoning evidence examined substituted AR Sh. D.S. Rathore as CW2, who filed on record, his evidence by way of affidavit and relied upon these documents:
Copy of power of attorney executed in his favour as Ex. CW2/1(OSR).
CC No. 56745/16 (old No. 57/16) 2 /17 Original cheque bearing no. 204780 dated 12.03.2009 drawn on UCO Bank, Krishna Nagar, Delhi branch as Ex. CW1/2, Original credit voucher dated 12.03.2009 as Ex. CW1/3, Original cheue return memo dated 12.03.2009 as Ex. CW1/4, Original credit voucher / deposit slip dated 10.06.2009 as Ex. CW1/5, Original cheque return memo dated 10.06.2009 as Ex. CW1/6, Legal demand notice dated 29.06.2009 as Ex. CW1/7, Original postal receipt as Ex. CW1/8, Original UPC receipt as Ex. CW1/9, Reply of the accused dated 10.07.2009, to legal demand notice of complainant as Ex. CW1/10, Rejoinder dated 30.07.2009 to reply of legal notice of the accused as Ex. CW1/11, Original postal receipt as Ex. CW1/12, Original UPC receipt as Ex. CW1/13, Original acknowledgement card as Ex. CW1/14. Statement of account for current account bearing no. 29649 of the accused as Ex. CW2/2(colly).
Copy of letter dated 27.06.2007 written by the accused to the bank as Ex. CW2/3(OSR)
4. Complainant examined Sh. Nemi Chand Balotiya, Chief Manager UCO Bank, Assets Management Branch as CW-3, who filed on record an authorization letter in his favour exhibited as Ex. CW3/1(OSR), certified copy of Form A-47 & Form A-1 executed by the accused in favour of the bank as Ex. CW3/2 & Ex. CW3/3 respectively, certified copy of sanction letter as Ex. CW3/4 & certified copy of memo of parties dated 29.03.2011 filed before the DRT as Ex. CW3/5.
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5. Complainant further examined Sh. C.S. Kashiv, Chief Manager UCO Bank, Zonal Office, Parliament Street, Delhi as CW-4, who filed his evidence by way of affidavit and relied upon the documents already exhibited by other complainant witnesses.
6. All complainant witnesses were cross examined by counsel for the accused at length. After conclusion of complainant's evidence, accused was examined U/s 313 Cr.P.C, wherein all the incriminating evidence was put to the accused. Accused denied availing any overdraft facility of Rs.15,00,000/- from the complainant bank on 30.06.2007 or executing Ex.CW-3/2 and Ex. CW3/3 in favour of the complainant. He further stated that the cheque in question was given to the complainant bank as security against vehicle loan. Accused further stated that Ex. CW2/3 was written to the complainant for personal loan. Accused also admitted receiving legal notice from the complainant and replying to the same. Accused contradicting his earlier reply, in response to another question stated that, he had not issued the cheque in question towards any loan. He further denied his liability towards the complainant and thereafter led defence evidence, to rebut the case of the complainant.
7. Accused examined Sh. Devi Lal Meghwal, Record Keeper, DRT-III, Jhandewalan, Delhi as DW-1, who filed on record copy of list of original documents filed by the complainant bank before DRT. The same is exhibited as Ex. DW1/1(OSR). He also filed on record copy of the claim filed by the complainant bank before the DRT, which is exhibited as Ex. DW1/2 (collectively for 25 pages) (OSR). Thereafter on conclusion of his examination in chief, DW-1 was cross examined and discharged and defence evidence was closed and matter was fixed for final arguments.
8. Final arguments were then addressed and heard on behalf of both the parties. Counsel appearing for complainant submitted that, the case of the complainant stands CC No. 56745/16 (old No. 57/16) 4 /17 unrebutted and the accused is liable to be convicted. It was further contended by him that the accused has admitted his signatures on the cheque in question as well as the fact of issuing the cheque to the complainant. He further contended that accused has failed to rebut the presumption U/s139 NI Act and has also not led any evidence in support of his defence. Counsel for complainant also placed reliance on the following decisions in support of his averments:
Charminar Co-operative Urban Bank Ltd. Hyderabad v. M/s Chaithanyakala Samithi, President and Secretary & Ors 2007(4) Crimes 189 (A.P.), K.N. Beena v. Muniyappan and another AIR 2001 SC 2895, P. Venugopal v. Madan P. Sarathi 2009 [1] JCC [NI] 27, V.S. Yadav v. Reena 172(2010) DLT 561, Suresh Chandra Goyal v. Amit Singhal II (2015) DLT (Crl.) 803, M.M.T.C. Ltd & Anr v. MEDCHL Chemicals & Pharma (P) Ltd & Anr IV(2005) BC 59 (SC).
9. On the other hand, counsel for the accused has addressed the following arguments in support of his case:
a) That the complainant has failed to prove its case beyond reasonable doubt as the complainant has not mentioned the date of advancement of funds to the accused or the source of funds.
b) That the case of the complainant becomes doubtful as the complainant has not mentioned about overdraft facility of Rs.15,00,000/- in his petition filed before the DRT.
c) That the complainant has not filed on record any document to prove the advancement of overdraft facility to the accused.
d) That the complainant has not mentioned the date of handing over the cheque in question by the accused.
CC No. 56745/16 (old No. 57/16) 5 /17
e) That the complainant bank has not shown the entry of dishonor of cheque on
10.06.2009 in the accounts statement of the accused and has also not deducted the dishonour charges for the same. The complainant has manipulated the return memo dated 10.06.2009 to show that the legal notice was issued to the accused within the period of 30 days.
f) That the complainant has examined CW-3 & CW-4 only to fill lacunas, after cross examination of CW-2 and that the witnesses have deposed beyond pleadings. Counsel for accused has also stated that the authorization letter placed on record by CW-3 is not proper and legally inadmissible.
g) That the document Ex.CW3/2, Ex.CW3/3 & Ex.CW3/4 are false as the same were filed by the complainant bank before the DRT on 28.02.2014 as reflected from the date mentioned on the stamp affixed on Ex. DW1/1, whereas the date of issue mentioned on the certified copy is 05.08.2013.
Counsel for accused also placed reliance on the following decisions in support of his averments:
Anil Aggarwal v. State 2015 (9) AD Delhi 377, John K Abraham Simon v. Simon C Abraham 2014 (2) SCC 236, K. Subramani v. K. Damodara Naidu 2015 Cr. L.J. 912, Wilson Mathew v. State 2015 (224) DLT 291, Krishna Janardhan Bhat v. Dattartraya G. Hegde 2008 (1) CCC 716 (SC), Indian Micro Electronic v. Chandra Indus, Central Bank of India v. M/s Asian Global 2010 (3) CCC 651 (SC) Kulvinder Singh v. Kafeel Ahmed 2013 II AD (Delhi) 81, Ashish v. Shah v. Seth Developers Pvt Ltd 2011 (3) Cr. CC 412 (Bombay High Court), Banshidhar Chits v. Chandra Prakash Crl. L.P. 335/2016 CC No. 56745/16 (old No. 57/16) 6 /17
10. Counsel for complainant rebutted all the above arguments of the counsel for the accused. Both sides in support of their case also filed written arguments, which are placed on record.
11. Before I embark upon the factual issue involved herein, let us look into the legal proposition governing the realm of cheque bounce cases. Offence under S.138 N.I. Act is deemed to have been committed when any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
To institute a case under the said section, the following requirements are to be fulfilled:-
(i) that cheque has been presented to the bank within the period of its validity whichever is earlier;
(ii) 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;
(iii) 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.
Being cumulative, it is only when all the ingredients and aforementioned requirements are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N.I. Act.
12. Section 118 of the NI Act inter alia provides that it shall be presumed, until the CC No. 56745/16 (old No. 57/16) 7 /17 contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a three judge bench observed that, Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. The Hon'ble Supreme Court observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt".
13. In the back ground of aforesaid legal proposition let me now deal with the contentions raised by counsel for the accused to see whether accused has placed enough and cogent material before this court to rebut the said statutory presumption which arose in favour of the complainant. The accused initially in his reply to the legal demand notice denied issuing the cheque in question to the complainant. However, during framing of notice u/s 251 Cr.P.C, accused admitted having issued the cheque in question to the complainant bank as security for scooter loan, in the year 2003. Accused has also admitted his signature on the cheque in question. Thus, the presumption under section 139 of the Negotiable Instrument Act would operate in favour of the complainant. However, the section merely raises a presumption, and not the existence per-se of a legally recoverable debt. Accused has admitted service of legal demand notice and has duly replied to the same. Reply of the accused dated CC No. 56745/16 (old No. 57/16) 8 /17 10.07.2009 is exhibited as CW1/10. Therefore the only question to be examined in the present case is, whether the cheque in question can be said to have been issued in discharge of legal liability or not?
14. It is the case of the complainant that the cheque in question was issued by the accused against discharge of liability arising out of the overdraft facility advanced to the accused by the complainant bank. As per the complainant the accused was operating a current account bearing number 29647 in the name of M/s Indigo Travels and Tours. The account, as per the complainant, was being operated by the accused as a sole proprietor. On request of the accused, in the year 2007-08, the complainant granted an overdraft facility for the above said account. As alleged by the complainant, the cheque in question was issued by the accused as repayment for over-draft facility. The said facts have been stated by the complainant in its complaint as well as legal demand notice dated 29.06.2009 exhibited as CW1/7. It would be worthwhile to reproduce paragraph 1 and 2 of legal demand notice Ex.CW1/7 as under:
"1. That you addressee deals in the business of travels & tours and is operating a current account no.29647 in the name of M/s Indigo Travels & Tours situated at B-4/1 Krishna Nagar, Delhi-110051 in my client bank. The above said account is being operated by you as its sole proprietor since long."
"2. That during the year 2007-8 on various occasions, you addressee approached and requested my client to provide you overdraft facility for the above said account and my client trusting and believing upon you addressee considered your request and granted you over draft facility many times. Earlier, also, you addressee availed over draft facility from my client on various occasions."
CC No. 56745/16 (old No. 57/16) 9 /17 Accused in his reply dated 10.07.2009 exhibited as CW1/10 has admitted the contents of para 1 and 2 of the legal demand notice dated 29.06.2009. Thus, accused has not only admitted having a current account bearing number 29647 with the complainant bank but also the fact that during the year 2007-08 he had approached the complainant for providing overdraft facility and the complainant bank had granted the facility to the accused several times. The factum of availing overdraft facility stands admitted by the accused in his reply to the legal demand notice. The accused however, countermanded from his earlier submissions in Ex.CW1/10 and in his statement U/s 313 Cr.P.C denied availing the overdraft facility, from the complainant bank.
15. Complainant in order to prove that the accused had availed overdraft facility from the complainant bank, examined witness CW-2, who placed on record account statement of the accused for the current account bearing number 29647 for the period 10/03/2007 to 29/09/2008 which is exhibited as CW-2/2. The account statement shows withdrawals & deposit by the accused during the said period. The initial balance in the said account as on 10/03/2007 is reflected as zero and the debit balance as on 29/09/2008 is shown as Rs.12,66,188.79/-. A statement of account prepared manually is also filed alongwith, where the interest accrued upto 11/03/2009 is shown as Rs. 2,42,232/- and the total debit balance is reflected as Rs. 15,08,420.79/-. CW-2, on being questioned about the unapplied interest in his cross examination, has stated that the amount of Rs. 15,08,420.79/-includes unapplied interest on outstanding balance of Rs.12,66,188.79/-. He further stated that the interest amount was not reflected in the computerised account statement as the account of the accused had been declared a non performing asset. The account statement prepared manually is supported by certificate of the chief manager, under the Banker's Book Evidence Act, 1891. Thus, exhibit CW2/2 not only explains, how the liability of the cheque amount in question, accrued against the accused, but also endorses the submission of the complainant, that the accused had benefitted with the overdraft facility provided by CC No. 56745/16 (old No. 57/16) 10 /17 the complainant bank during the said period.
16. Furthermore, the submission by the learned defence counsel, that the complainant has not mentioned the date as well as the source of advancement of loan, does not hold consequence in the present facts and circumstances, as the account statement Ex.CW2/2 clearly reflects the dates when the accused benefitted with the overdraft facility advanced by the complainant. Further it would be vacuous to look into the question of source of the loan amount, in the present case, where the complainant is a nationalised bank.
17. To further lend credence to the complainant's case, CW-2 placed on record copy of letter dated 27.06.2007 written by the accused to the complainant bank. The same is exhibited as Ex. CW2/3(OSR). The said letter signed by the accused mentions about overdraft facility in current account number 29647. CW-2 in his cross-examination was given suggestions against the veritablity of Ex. CW2/3 (OSR) which he denied. Thereafter nothing was brought on record by the accused to challenge the actuality of Ex. CW2/3(OSR). Rather accused himself during his statement U/s 313 Cr. PC has covertly admitted writing the said letter to the complainant.
18. Complainant also examined CW-3 Sh. Nemi Chand & CW-4 Sh. C.S. Kashiv to prove the sanction of overdraft facility to the accused. Objections were raised by counsel for accused, against evidence adduced by CW-3 & CW-4 as witnesses of the complainant bank. It was stated by counsel for accused that CW-3 & CW-4 have repeated the same facts as CW-2 alongwith certain additional facts which are beyond pleadings and find no mention in the complaint. It is also submitted by counsel for accused that complainant has examined CW-3 & CW-4 only to fill lacunas in its case and that the documents filed by the said witnesses cannot be considered in absence of specific pleadings in the complaint.
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19. This court however, is not convinced with the argument of the learned defence counsel. Since beginning it is the case of the complainant that the accused had availed overdraft facility from the bank and that the cheque in question was given by the accused against repayment of overdraft facility. AR of the complainant during pre summoning and post summoning evidence have deposed in furtherance of the said premise. CW-3 and CW-4 have also deposed on similar lines to further support case of the complainant. The documents relied upon by CW-3 and CW-4 only advance the above stated premise of the complainant. No new fact which diverges from the initial case of the complainant is stated by the witnesses in their evidence. Nothing bars the complainant from examining additional witnesses in support of its case. Furthermore accused had the opportunity of cross examining both witnesses at length. Thus the objection by the learned defence counsel does not sustain and is hereby dismissed.
20. Another technical objection raised by the defence counsel is that authorization letter Ex. CW3/1 for witness CW-3 is not proper. It be noted that CW-3 is only a witness of the complainant and not his authorized representative for the present case. Infact CW-3 is himself the chief manager of the Assets Management Branch of the complainant bank. Nothing has been brought to the notice of this court to show the requirement of authorization letter for the said witness. Hence the court is not inclined to accept this argument of the defence counsel.
21. Having overcome the above objection of the learned defence counsel, let us now turn to the evidence adduced by CW-4, in support of the complainant's case. Sh. C.S. Kashiv, who was then the Branch Manager at UCO Bank, Krishna Nagar branch, was examined as CW-4. He, in his evidence by way of affidavit, stated that on verbal request of the accused, who is the proprietor of M/s Indigo Travels & Tours, a temporary overdraft facility to the tune of Rs.15,00,000/- at the interest of 17.5 % per annum was sanctioned by him on behalf of the complainant bank. As per CC No. 56745/16 (old No. 57/16) 12 /17 CW-4, the facility was sanctioned to the accused on his current account no. 29647 on 30.06.2007 and a sanction letter under his signatures was given to the accused by hand. The copy of the sanction letter is Ex. CW3/4. CW-4 further in his evidence by way of affidavit, deposed that after the sanction of temporary overdraft facility to the said current account of the accused, accused start availing the facility by issuing various cheques. As per CW-4 the cheques were honoured by the complainant bank against temporary overdraft facility to the current account of the accused. During his cross-examination CW-4 denied suggestions against sanctioning of temporary overdraft facility to the accused. Nothing has been brought on record to disbelieve the version of the witness who has been consistent in his deposition before the court.
22. Next the Ld. Defence counsel has argued that the documents Ex. CW3/2, Ex. CW3/3, Ex. CW3/4 are false as the same were filed by the complainant bank before the DRT on 28.02.2014, whereas the certified copy of the same have been issued by DRT on 05.08.2013. However nothing has been put forth by the accused to discredit the genuineness of Ex. CW3/2, Ex. CW3/3 and Ex. CW3/4. Neither has the accused taken any action or filed any complaint against the complainant bank for the abovesaid allegation. Infact accused himself examined record keeper from DRT-III Sh. Devi Lal as DW-1. DW-1 in his cross-examination admitted that the certified copy of document Ex. CW3/2, Ex. CW3/3, Ex. CW3/4 & Ex. CW3/5 was issued by DRT-III on 05.08.2013. He also stated that the original of Ex. CW3/2 to Ex. CW3/5 are available in the summoned record brought by him. In light of the above testimony of the defence witness, the said argument of the Ld. Defence counsel also fails.
23. In a last ditch effort it was next argued by counsel for the accused that the complainant has manipulated the return memo dated 10.06.2009 as the bank has not shown the entry of dishonor of cheque on 10.06.2009 in the accounts statement of the accused and has also not deducted the dishonour charges for the same. As per counsel for the accused the same has been done by the complainant, in order to show that the CC No. 56745/16 (old No. 57/16) 13 /17 legal notice was issued to the accused within the period of 30 days. This argument of the learned defence counsel is outrightly rejected as complainant has already placed on record the return memo dated 10.06.2009 which is exhibited as Ex. CW1/6 as proof of presentment. Further, no provision either in the NI Act or any of the banking laws, has been brought to the notice of this court, which stipulates that entry of dishonor of cheque should be reflected in the account statement of the accused or dishonour charges for the same be deducted from the account. Reliance in this regard is placed on a decision of the Hon'ble Andhra Pradesh High court in Charminar Co- operative Urban Bank Ltd. Hyderabad v. M/s Chaithanyakala Samithi, President and Secretary & Ors 2007(4) Crimes 189 (A.P.), wherein presentment of cheque and generation of return memo was considered to be sufficient requirement in case of in-house transaction of this type.
24. Furthermore, the presumption of the cheque in question having been issued in discharge of debt in the present case, further gets fortified as the accused has not disputed his signatures on the cheque in question. During framing of notice u/s 251 Cr.P.C accused had stated that the cheque in question was one of the three blank signed security cheques given at the time of disbursement of scooter loan in the year 2003. Accused initially in his reply to the legal demand notice had taken the defence that cheque in question never belonged to him, as no cheque book containing the alleged cheque was ever issued to him by the complainant bank. However, this defence of the accused did not sustain as complainant in its rejoinder dated 27.07.2009 which is exhibited as Ex. CW1/11, stated the details of the cheque book, containing the cheque in question. Further CW-2 during his cross-examination also placed on record customer account maintenance cheque leaf status inquiry record which is exhibited as Ex. CW2/5. As per Ex. CW2/5, the cheque book containing the cheque in question was issued to the accused on 24.07.2007. CW-2 also filed the account statement for account bearing no. 28838, for the period 01.01.2007 to 04.10.2010, which is exhibited as Ex. CW2/4. As per Ex. CW2/4, cheques bearing CC No. 56745/16 (old No. 57/16) 14 /17 no. 204778, 204779, 204785 and so on were presented and cleared from the said account of the accused during the year 2007. In view of this, the defence of the accused taken during the stage of framing of notice U/s 251 Cr. PC, holds no ground as the complainant has proved that the cheque book containing the cheque in question was not even issued to the accused in the year 2003. Thus, the possibility of the accused, having issued the cheque in question as security for a scooter loan in the year 2003, does not remain. Nothing has been brought on record by the accused to disbelieve this part of the testimony of the complainant witness.
25. Moreover, the proclamation by the accused that the complainant bank has misused the cheque in question appears to be fallacious in nature. The accused has failed to convince the court that the said cheque was issued by the accused as security for vehicle loan. Nothing was placed on record by the accused to support his submission. It is well established that issuance of cheque itself raises the presumption that it must have been issued in discharge of legally enforceable liability / debt. In order to rebut this presumption, accused has to bring some substantial evidence to prove his defence on the basis of balance of probabilities. Merely bald statements are not believable in absence of any other evidence to corroborate the same.
26. As observed by Hon'ble High Court of Delhi in V.S. Yadav v. Reena 2010 (4) JCC (NI) 323, the statutory presumption under NI Act are mandatory in nature and the same can not be rebutted on mere explanations / bald statements made by the accused U/s 251 Cr. PC and Section 313 Cr. PC without leading any evidence. Also Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 held, 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 CC No. 56745/16 (old No. 57/16) 15 /17 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.
27. As already observed, since the statutory presumption under the NI Act is in favour of the complainant, the complainant need not prove anything else apart from the fact that the accused issued the cheque bearing his signatures, that the same was dishonored on presentation, that legal notice was sent to the accused demanding payment of cheque amount and failure of accused to pay the cheque amount within 15 days after receipt of legal notice. In the instant case, all of the above have been proved by the complainant. Accused has also admitted his signatures on the cheque in question. Accused has not been able to demolish the complainant's story. Nothing has come in the evidence of the accused which renders the story of the complainant unbelievable. It is seen from the evidence of the complainant that he has categorically stated that the accused did not pay the cheque amount within 15 days of receipt of legal notice sent to him. Accused has already admitted receiving legal demand notice from the complainant, therefore, he was liable to pay the cheque amount within 15 days of receipt of the same. He has stated in his statement U/s 313 Cr. PC that he did not make the payment as he was not liable to pay in respect of the cheque in question. Therefore, the fact that the payment was not made has been admitted by the accused and thus, stands proved.
28. In the instant case accused has miserably failed to discharge the onus of proving his defence even on the basis of preponderance of probabilities. Mere statement during framing of notice u/s 251 Cr. P.C or statement u/s 313 Cr. P.C cannot be said to be evidence in favour of the accused and thus the same cannot be relied upon. The evidence adduced by the accused in the present case is not sufficient to rebut the statutory presumption in favour of the complainant. In light of the above CC No. 56745/16 (old No. 57/16) 16 /17 discussion, complainant can be said to have discharged the burden upon him to prove the above said requirements for offence u/s 138 NI Act. Accordingly, accused Harsh Ved Vyas, S/o Sh. Y.N. Gupta, Proprietor of M/s Indigo Travels & Tours R/o B-4/1 Krishna Nagar, Delhi-110051 stands convicted for offence U/s 138 Negotiable Instrument Act.
Announced in the open court
today i.e. 26.08.2016 (NABEELA WALI)
MM:KKD:DELHI:26.08.2016
This judgment contains 17 pages all signed by the presiding officer.
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