Delhi District Court
Complainant vs . Bratindranath Banerjee (2001) 6 Scc ... on 9 November, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE (CENTRAL) NI
ACT-04, CENTRAL DISTRICT, TIS HAZARI COURT, DELHI.
Presided over by: - Ms. Kratika Chaturvedi, DJS
CC No. 511412/2016
Unique case ID No. DLCT020021562016
In the matter of:-
Sh. Ramesh Arora, Prop. of
M/S Nav Durga Metals,
Shop NO. 3404, Gali Lallu Missar,
Qutub Road, Sadar Bazar, Delhi-110006.
......Complainant
Versus
Sh. Laxmi Narain Gupta
R/o H.No. 3729, Gali No. 1,
Kanhaiya Nagar, Tri Nagar,
Delhi. ....... Accused
Date of Institution : 23.03.2016
Offence complained of : Section 138 Negotiable
or proved Instrument Act, 1881
CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 1 of 19
Plea of Accused : Not guilty
Date of Filing : 16.03.2016
Date of Decision : 09.11.2021
Final Order : Convicted
Argued by:- : Mr. Suresh Sharma , Ld. Counsel for
complainant.
: Mr. Rajkumar Bhartiya, Ld. Counsel for
accused.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. The present complaint has been filed by the complainant, Sh. Ramesh Arora, Proprietor of M/s Nav Durga Metals against the accused person, Sh. Lakshmi Narain Gupta under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). The substance of allegations and assertions of the complainant is that the complainant is dealing in all kinds of ferrous and non-ferrous metal scrap and that the accused purchased aluminium scrap from the complainant on 17.06.2015 and 18.06.2015 during the course of business. It is the case of the complainant that he had raised the invoice bearing no. 007 dated 17.06.2015 for Rs. 2,51,675/- and invoice bearing no. 008 dated 18.06.2015 for Rs. 1,50,150/-, amounting to Rs. 4,01,825/- in total and that in order to discharge his partial liability, the accused had issued the cheques bearing no. 293606, 293607, 293608, 293609, 293610 and 293611. It is further the case of the complainant that out of the aforesaid CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 2 of 19 cheques, only cheque bearing no. 293606 and cheque bearing no. 293608 were honoured and the remaining cheques with cheque bearing no.
293607 dated 08.12.2015 for an amount of Rs. 20,000/-, cheque bearing no. 293609 dated 02.01.2016 for an amount of Rs. 20,000/-, cheque bearing no. 293610 dated 06.01.2016 for an amount of Rs. 20,000/- and cheque bearing no. 293611 dated 11.01.2016 for an amount of Rs. 20,000/-, all drawn on State Bank of India, Inderlok, Delhi (hereinafter referred to as the "cheques in question"), however the said cheques in question were returned dishonour on presenting with the remarks "funds insufficient" vide return memo dated 30.01.2016. The complainant thereafter issued a legal demand notice dated 05.02.2016 for the cheques in question which were duly served upon the accused. Despite service, the accused failed to repay the cheque amount within the stipulated period and hence, the present complaint has been filed under section 138 of the NI Act.
APPEARANCE OF ACCUSED AND TRIAL
2. On finding a prima facie case against the accused, the accused was summoned to face trial and after his appearance, notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was framed against the accused on 01.05.2017. In reply to the notice of accusation, the accused pleaded not guilty and claimed trial. The accused further stated, "I am the prop. of M/s Narain Metal registered. I never received the legal notice dated 05.02.2016 as sent by the counsel Sh. Suresh Sharma on behalf of the complainant in respect of the same dishonour cheque. I handed over the aforesaid cheque to the complainant as security cheques against the aforesaid bills CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 3 of 19 as raised by the complainant. I have already paid all the outstanding dues against the bills to the complainant in cash. The aforesaid cheques have been issued against the said bills if I do not paid (sic) the amount against the said bills. The same facts came into my knowledge when I received the summons as issued by this Hon'ble Court."
3. The Ld. Counsel on behalf of the accused moved an application under section 145(2) of NI Act in order to cross-examine the complainant which was allowed vide order dated 01.05.2017 and the cross-examination of the complainant was closed vide order dated 25.06.2019.
4. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove his case beyond reasonable doubt-:
ORAL EVIDENCE CW 1 : Sh. Ramesh Arora (Complainant) DOCUMENTARY EVIDENCE Ex. CW1/1 : Invoice no. 007 dated 17.06.2015 Ex. CW1/2 : Invoice no. 008 dated 18.06.2017 Ex. CW1/3 : Cheque bearing no. 293607 dated 08.12.2015 for a sum of Rs. 20,000/-
Ex. CW1/4 : Cheque bearing no. 293609 dated 02.01.2016 for a sum of Rs. 20,000/-
Ex. CW1/5 : Cheque bearing no. 293610 dated 06.01.2016 for a sum of Rs. 20,000/-
Ex. CW1/6 : Cheque bearing no. 293611 dated 11.01.2016 for a sum of Rs. 20,000/-CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 4 of 19
Ex. CW1/7 : Return Memo dated 30.01.2016
Ex. CW1/8 : Legal demand notice dated 05.02.2016
Ex. CW1/9 : Postal receipts dated 06.02.2016
& Ex. CW1/10
Ex. CW1/12 : Reg. AD Card
Ex. CW1/A : Pre-Summoning Evidence by way of affidavit
of complainant
5. Before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313(1)(b) of the CrPC on 31.07.2019. In reply, the accused stated that he had given the cheques in question as security cheques to the complainant as they had business dealing. He further stated that all the payments have already been made by the accused, however, the complainant did not return his cheques and had lodged the false case against the accused.
6. The final arguments were addressed by the Ld. Counsels for complainant and the accused. I have heard the Ld. counsels appearing for both the parties and have given my thoughtful consideration to the material appearing on record.
ARGUMENTS-
7. The Ld. Counsel on behalf of the complainant had argued that the ingredients to the offence under section 138 NI Act are fulfilled and the complainant has duly proved its case. He had argued that once the CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 5 of 19 signature on the cheque in question is admitted by the accused, a presumption of a legally enforceable debt has arisen in favour of the complainant and now it is for the accused to rebut the said presumption. He has placed reliance upon the judgment of Hon'ble Apex Court, Rangappa v. Sri Mohan 2010 (3) R.C.R. (Criminal) 164, wherein the court has observed as under, "This court held that once issuance of a cheque and signature hereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption."
8. The Ld. Counsel for the complainant argued that the onus to discharge the said presumption is upon the accused and it is an admitted fact that accused used to purchase goods from the complainant. He further argued that the accused has not led any evidence to rebut the presumption and that he has not even filed any case for the cheques which have been honoured. He further argued that a civil suit for the recovery of the due amount is also pending against the same parties. Also, he had argued that the legal notice has been duly served upon the accused.
9. As such, the Ld. Counsel for the complainant prays that the accused be convicted for the offence under section 138 of NI Act.
10. Per contra, the Ld. Counsel for the accused had argued that there exists no legal liability towards the complainant as the accused had not received the goods as alleged by the complainant as the invoices placed on record CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 6 of 19 does not bear the receiving of the goods. He further argued that invoices placed on record are loose sheets and cannot be relied upon as the same is inadmissible as per section 34 of the Indian Evidence Act, 1872 and relied upon the judgment of the Hon'ble Delhi High Court in the case of L.K. Advani & Ors. v. Central Bureau of Investigation 66 (1997) DLT 618, wherein it has been observed as under, "... the entries in books of account by themselves are not sufficient enough to fasten the liability on the head of a person against whom they are produced. They are not a substantive piece of evidence. The said entries in the books of account can be used only way of corroboration to other pieces of evidence which is led by a party..."
Further, he argued that the complainant has not been able to show that the delivery of the goods have been made to the accused.
11. The Ld. Counsel for the accused argued that non-reflection of the loan amount in the ITRs or books of account is sufficient to rebut the presumption under section 139 of the NI Act and reliance was placed upon the judgment of the Hon'ble High Court of Delhi in the case of Vipul Kumar Gupta v. Vipin Gupta [2012 [4] JCC [NI] 248] and the judgment of the Hon'ble High Court of Bombay in the case of Sanjay Mishra v. Ms. Kanika Kapoor @ Nikki and Anr. [2009 Crl. L.J. 3777]
12. The Ld. Counsel for the accused also argued that the accused had not received any legal notice as the address mentioned in the legal notice is incorrect and thus the ingredient to the offence under section 138 of NI Act is not fulfilled. The Ld. Counsel has also placed on record the certified copy of the chief and cross-examination of the complainant CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 7 of 19 which is pending before the Ld. DJ (Commercial Court), wherein he had shown that the complainant had made a contradictory statement with reference to the statement made in the instant case regarding the payments being reflected in the ITRs and the auditing of the firm. He further argued that the complainant has not placed on record any ledger account or any agreement relating to the transaction between the complainant and the accused. He had argued that the accused has been able to rebut the presumption raised under Section 139 of NI Act.
13. As such, it is prayed that the accused be acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
INGREDIENTS OF OFFENCE AND DISCUSSION-
14. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 8 of 19
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE-
15. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co- extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third and fourth ingredient. The complainant had proved the original cheques vide Ex. CW1/3, Ex. CW1/4, Ex. CW1/5 and Ex. CW1/6 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheques in question were presented within its validity period. The cheques in question were returned unpaid vide return memos dated 30.01.2016 vide Ex. CW1/7 due to the reason, "funds insufficient". The complainant had proved on record the legal demand notice dated 05.02.2016 vide Ex. CW1/8, postal receipts vide Ex. CW1/9 and Ex. CW1/10 and acknowledgement card vide Ex. CW1/12. However, the Ld. Counsel for the accused has denied the receipt of the legal demand notice. Thus, there is a dispute between the parties regarding the fifth ingredient to the offence, as to whether the legal notice has been received by the accused or not. As such, only first, third and fourth ingredient of the offence under section 138 of the NI Act stands proved.
CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 9 of 1916. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
17. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
18. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 10 of 19 Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
19. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 11 of 19I. DEFENCE THAT THERE IS NO EXISTING LEGAL LIABILTY TOWARDS THE COMPLAINANT The main issue which arises for consideration is whether the cheques in question were issued for the discharge of the legal liability or not. The Ld. Counsel for the accused submitted that the cheques were issued for the purpose of security and as such no legal liability exists in favour of the complainant. On the other hand, the Ld. Counsel for the complainant had argued that the cheques were issued for discharging their partial liability. It is to be seen that the complainant had placed on record the invoices vide Ex. CW/1/ & Ex. CW1/2 dated 17.06.2015 and 18.06.2015, which has been opposed by the Ld. Counsel for the accused on the ground that the same are loose sheets and reliance cannot be placed upon the invoices placed on record by the complainant and has placed the reliance on L.K. Advani & Ors v. CBI (supra). However, judgment relied upon by the Ld. Counsel for the accused is not applicable to the facts of the present case as the documents placed by the complainant are not books of account rather the invoices as Ex. CW1/1 and Ex. CW1/2.
It is the case of the complainant that for the amount due in the bills, the accused had handed over six cheques of Rs. 20,000/- for the part payment, out of which only two were encashed and remaining were dishonoured on account of funds insufficient. It is an admitted fact that no recovery suit or complaint has been filed by the accused for the cheques which have been honoured. The presumption lies in favour of the complainant and the burden is upon the accused to rebut the same. Section 139 of the Act provides that unless contrary is proved, it shall be presumed that the holder of a cheque received the same for discharge of CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 12 of 19 any debt or other liability. The word "shall" indicate that, it is mandatory on the part of the court to draw the presumption in favour of holder of the cheque in due course, unless rebutted. At the cost of repetition, it is worth to note that, accused has not taken any steps to rebut the said presumption except for the bald assertion that the cheques in question were issued for the security purpose against the bills raised by the complainant and that he had already paid all the outstanding dues against the bills to the complainant in cash. It is a well settled law that security cheques are covered under the offence under section 138 of the NI Act. The same view has also been reiterated recently by the Hon'ble Supreme Court in the case of Sripati Singh (D) v. State of Jharkhand [2021 SCC Online SC 1002].
The issue in the instant case is not about the delivery of the goods rather whether the accused had paid the amount as has been alleged by the accused in his plea of defence, which has been denied by the complainant. In the instant case, the accused has failed to adduce any evidence with regard to the alleged payment made by him in cash to the complainant. Moreover, the presumption is in favour of the complainant which has further been corroborated by the invoices vide Ex. CW1/1 and Ex. CW1/2 placed on record. That apart, section 118 of the N.I. Act lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume that the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption under section 118 of the N.I. Act goes in favour of the complainant. Therefore, this court can conveniently opine that, complainant proved his case CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 13 of 19 through cogent, convincing, acceptable oral and documentary evidence brought on record.
The Ld. Counsel for the accused had further contended that other particulars on the cheque in question were not filled by the accused as the same were handed over to the complainant for the purpose of security. However, it is a settled position of law that it is immaterial as to whether the accused had filled the other particulars on the cheques in question when the same has been duly signed by the drawer of the cheque. A reliance be placed upon the judgment of the Hon'ble Supreme Court in the case of Bir Singh v. Mukesh Kumar 2019 (4) SCC 197, wherein it has been held that a material reading of the provisions of the Negotiable Instruments Act including, in particular, sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of his legal liability. It further laid down that it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. In the present case, it is an admitted fact that the cheque was signed by the accused, thus, it can be said that he gave the full authority to the complainant to fill the contents of the cheques in question and the plea taken by the accused does not hold good in the light of the settled law.
The Ld. Counsel for the accused had also argued that the complainant in the cross-examination had stated that he does not know whether the transaction has been reflected in his ITR/ books of account or the same has been audited and has contradicted the same by placing on record the certified copy of the chief and cross-examination of the CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 14 of 19 complainant of the civil suit pending before the Ld. DJ (Commercial Court), wherein the complainant has admitted that the same has been reflected in ITRs and auditing is also done of the accounts of the firm. Thus, from the perusal of the same, it cannot be termed as contradiction as the complainant has been able to justify his answer by stating that the ITRs and audit report were filed by his Chartered Accountant, so the complainant was not aware about the same and thus, the same cannot said to be a contradiction. Moreover, the same is irrelevant on the ground that the complainant has placed on record sufficient evidence to raise the presumption under section 139 of the NI Act. The contention of the Ld. Counsel for the accused that the complainant has not placed on record the ledger account and VAT is also irrelevant at the stage of final arguments as the Ld. Counsel for the accused has neither put any question nor any suggestion in the cross-examination of the complainant.
The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted hereinabove, the 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 CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 15 of 19 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"
In the present case, the accused has failed to adduce sufficient evidence to rebut the presumption laid down under section 139 of the NI Act. A statutory presumption has an evidentiary value. The question as whether the presumption stood rebutted or not, must, therefore, determined keeping in view the other evidence on record. In the present case, the accused has miserably failed to disprove that the cheques in question were not issued for the discharge of any legal liability.
Consequently, it can be said that legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 138 of NI Act stands proved.
II. DEFENCE THAT THE ACCUSED HAD NOT RECEIVED
THE LEGAL DEMAND NOTICE
It is contended by the Ld. Counsel for the accused that the accused has not received any legal notice dated 05.02.2016 vide Ex. CW1/8, so cause of action does not arise in such circumstances. The complainant has admitted that the legal notice vide Ex. CW1/8 to the accused was sent at the address of the accused as the accused used to reside at the same address and he has placed on CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 16 of 19 record the postal receipts vide Ex. CW1/9 and Ex. CW1/10, Acknowledgement card vide Ex. CW1/12.
Perusal of the record reveals that the address mentioned in the legal notice is the same as has been stated by the accused in the bail bonds furnished by the accused. Thus, the contention of the Ld. Counsel that the address mentioned is incorrect is not sustainable. It is to be seen that the accused has appeared after the issuance of the summons against him. A reliance be placed on the judgment of the Hon'ble High Court of Delhi, Manoj Jain v. Surinder Kumar Jain & Anr. 2015 (3) JCC (NI) 212, wherein the court observed as under:
"The assertion of the Petitioner that the demand notice was not received by him as it was sent on a wrong address. The summons by the court which were also sent at the same address, were received by him. The notice, which was sent by UPC did not return, indicating that it was served. Thus, both the courts below rightly held that notice was validly served."
The complainant has placed on record sufficient evidence to show that the legal notice was duly sent to the accused and the appearance of the accused thereafter in the court shows that the legal notice was validly served.
Also, it is nobody's case that the accused tendered the amount entailed in the impugned cheque upon entering appearance before this court in response to the summons issued in the instant case. At this stage, a reliance be placed upon the judgment of the Hon'ble Supreme Court in the case of CC. Alavi Haji v. Palalpetty Muhammed & Anr. (2007) 6 SCC 555, wherein it was observed as under, "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 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 CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 17 of 19 under Section 138 of 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 of 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."
The plea of the accused regarding the non-receipt of the legal notice is accordingly rejected as being frivolous and inconsequential. Consequently, the fourth ingredient of the offence under section 138 of NI Act is proved.
CONCLUSION
20. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt that the accused had issued the cheques in question in discharge of its legally enforceable liability. The presumptions under section 118 and section 139 of the NI Act were drawn against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that there was no legal liability is not proved, even on the standard of preponderance of probabilities. Moreover, the Hon'ble Supreme Court in the case of Lakshmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, "Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 18 of 19 not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
21. In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI Act. Accordingly, the accused, Sh. Laxmi Narain Gupta, is held guilty for committing the offence under section 138 of the NI Act and is hereby convicted.
Announced in the open court on 09.11.2021 in the presence of both the parties. Digitally signed by KRATIKA KRATIKA CHATURVEDI CHATURVEDI Date: 2021.11.09 15:18:28 +0000 (Kratika Chaturvedi) MM, NI Act-04, Central District, THC 09.11.2021 Note:- This judgment contains 19 pages and each page has been signed by me.
CC No. 511412/2016 Ramesh Arora v. Laxmi Narain Gupta Page 19 of 19