Delhi District Court
Anil Kumar Gupta vs . Ajay Kumar on 2 March, 2020
IN THE COURT OF MS. APOORVA RANA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
CC No. 3118/2018
Anil Kumar Gupta Vs. Ajay Kumar
1.Complaint Case number : CC No. 3118/2018 2 Name of the complainant : Anil Kumar Gupta, S/o Late Sh. Shyam Sunder, R/o House No. D97, First Floor, Freedom Fighter Colony, Neb Sarai, New Delhi110068.
3. Name and address of the : Ajay Kumar, accused S/o Sh. Rattan Lal, R/o 14/2, Bhogal Lane, Jungpura, New Delhi110014.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trail.
6. Final Order : Conviction CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 1 to 26
7. Date of Institution : 14.03.2018
8. Date of Reserving the : 24.01.2020 Judgment
9. Date of pronouncement : 02.03.2020 Judgment:
1. The facts giving rise to the present complaint are that the complainant is the absolute owner of property bearing no.59, Second Floor, Sant Nagar, East of Kailash, New Delhi110065. It is the case of the complainant that the said property was given to the accused on lease for 12 months, starting from 30.10.2017 to 29.10.2018 vide registered lease agreement dated 31.10.2017. It is further case of the complainant that the accused failed to adhere to the terms of aforesaid lease agreement as he served the legal notice upon the complainant on 14.12.2017 to vacate the premises which was received by the complainant on 26.12.2017, however, the accused handed over the keys to the complainant on 02.02.2018. It is further case of the complainant that the accused also failed to pay the electricity bill of Rs.6,570/ CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 2 to 26 and water bill of Rs.821/ for period of occupation of premises under lease agreement. It is also case of the complainant that during his occupation under lease agreement, electric motor was burnt, paint & bathroom tiles were damaged and four air conditioners handed over to the accused were also damaged. It is the case of the complainant that in order to settle the account in respect of the aforesaid damage and the rent for the notice period, the accused agreed to pay a sum of Rs.72,000/ to the complainant in lumpsum. It is further case of the complainant that the accused in discharge of his legal liability, issued cheque bearing number 023708 dated 06.02.2018 for an amount of Rs.72,000/, drawn on bank account maintained with Punjab National Bank, Jungpura Bhogal, New Delhi (hereinafter referred to as the 'cheque in question') in favour of the complainant. That cheque in question was returned unpaid upon presentation on account of "funds insufficient" vide return memo dated 07.02.2018. The accused refused to pay the cheque amount despite the fact of dishonor of cheque having been brought to the notice of the accused by the complainant. Further, legal demand notice dated 14.02.2018 was duly sent by complainant to the accused in this regard, CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 3 to 26 but to no avail. The complainant has stated that accused failed to pay the cheque amount within the statutory period.
Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
2. Upon service of summons, accused entered an appearance in the present matter for the first time on 25.10.2018 and was admitted to bail. Notice under Section 251 Cr.P.C. was served upon accused on 25.10.2018, to which the accused pleaded not guilty and claimed trial. In his statement of defence, accused, while admitting the rent agreement, stated that he had given 20 cheques to the complainant as PDCs for payment of rent. He further stated that he had asked the complainant to not to present the cheque for payment of rent January, 2018 and also stated that he had paid the rent of January, 2018, partly by way of cash (Rs.18,000/) and partly by way of cheque (Rs.12,000/). He further stated that he had vacated the rented premises on 14.02.2018 and the cheque in question was given as blank signed cheque for payment of Rs.18,000/. Thereafter, accused was allowed to cross CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 4 to 26 examine the complainant under section 145 (2) NI Act. After cross examination of the complainant, matter was fixed for recording statement of the accused under Section 313 Cr.P.C. In the said statement recorded on 27.03.2019, the accused deviated from the defence taken by him at the time of framing of notice and stated that he had vacated the rented premises on 14.12.2017 itself after serving of two notices to the complainant qua vacation of premises by the accused and had handed over the keys of the property to property dealer Sahil on 14.12.2017 itself. He also stated that at the time of execution of lease deed, he had issued two cheques of Rs.72,000/ and Rs.1,08,000/ as security to the complainant. Matter was thereafter fixed for defence evidence. Defence evidence was closed on 31.07.2019 and the matter was fixed for final arguments.
Evidence
3. In order to support his case, complainant stepped into the witness box as CW1 and tendered his affidavit Ex.CW1/A into evidence, wherein, averments made in the complaint were reiterated. He also relied upon various CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 5 to 26 documents such as Ex.CW1/1 (OSR) which is copy of registered lease agreement dated 31.10.2017, Ex.CW1/2 (OSR) which is one agreement dated 31.10.2017, Ex.CW1/3 which are legal notice dated 14.12.2017 alongwith original postal envelope, Ex.CW1/4 which is cheque in question, Ex.CW1/5 which is counter foil dated 06.02.2018, Ex.CW1/6 which is cheque return memo, Ex.CW1/7 which is legal notice dated 14.02.2018, Ex.CW1/8 which is postal receipt and Ex.CW1/9 which is tracking report. No other witness was examined on behalf of the complainant.
4. Accused, on the other hand, examined himself as DW1 in his defence. No other witness was examined by the accused.
Arguments
5. Ld. counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case, and hence, the accused be convicted. On the other hand, it has been argued on behalf of the accused that the complainant has not been able to prove his case CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 6 to 26 beyond reasonable doubt and that no loan was taken by the accused from the complainant. I have heard the ld. counsels for the parties and have perused the record carefully.
Points for determination and reasons for decision
6. For an offence under Section 138 of NI Act to be made out against the accused, the complainant must prove the following points:
(i) The accused issued a cheque on account maintained by him with a bank.
(ii) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
(iii) The said cheque has been presented to the bank within a period of 3 months from the date of cheque or within the period of its validity.
(iv) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
(v) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of cheque.
(vi) The drawer of the cheque failed to make the payment CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 7 to 26 within 15 days from the receipt of above mentioned legal notice of demand.
7. Thus, on the basis of the evidence adduced, the points that warrant determination are as follows:
Whether the accused issued the cheque in question to the complainant for discharge, in whole or in part, of any debt or other liability?
8. It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proven guilty. Thus, normally the initial burden to prove is on the complainant/prosecution to prove the guilt of the accused. Also, the standard of proof required is that of "beyond reasonable doubt". However, in offences under Section 138 NI Act, there is reverse onus clause contained in Sections 118 and 139 of the Act. Thus, the primary burden of proof in order to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same .
CC No. 3118/2018Anil Kumar Gupta Vs. Ajay Kumar Page 8 to 26 Further, the explanation to Section 138 of the Negotiable Instruments Act, 1881 states that for the purpose of this Section, "debt or other liability" means a legally enforceable debt or other liability.
However, once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", and the meaning of the word "shall presume" in Section 4 of the Evidence Act, shows that the presumption under Section 139 is rebuttable.
Furthermore, the standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 9 to 26 of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the rescue of the complainant. [Bharat Barrel & Drum Manufacture Co. Vs. Amin Chand Pyarelal (1999) 3 SCC 3S and M.S. Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 relied upon].
Mode of Proof: The accused may adduce direct evidence to prove that the note in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of 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 CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 10 to 26 complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances (including presumption under Section 114 Evidence Act), upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist. [Kishan Rao Vs. Shankaguda, 2018 (8) SCC 165, Mosaraf Hossain Khan Vs. Bhageeratha Engg. Ltd. & Ors (2006) 3 SCC 658, Goa Plast (P) Ltd. Vs. Chico Ursula D Souza (2004) 2 SCC 235, Monaben Ketanbhai Shah Vs. State of Gujarat (2004) 7 SCC 15, Prem Chand Vijay Kumar Vs. Yashpal Singh (2005) 4 SCC 417, DCM Financial Services Vs. J N Sareen (AIR 2008 SC 2255), K. Bhaskaran Vs. Shankaran Vaidhyan Balan (1999) 7 SCC 510 relied upon].
9. Averting to the facts of the present case, the accused has stated in his defence against substance of accusation u/s 251 Cr.P.C. that he had given 20 cheques to the complainant as PDCs for payment of rent. He further stated that he had asked the complainant to not present the cheque for payment CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 11 to 26 of rent January, 2018 and also stated that he had paid the rent of January, 2018, partly by way of cash (Rs.18,000/) and partly by way of cheque (Rs.12,000/). He further stated that he had vacated the rented premises on 14.02.2018 and the cheque in question was given as blank signed cheque for payment of Rs.18,000/. Thereafter, in his statement of defence u/s 313 Cr.P.C., the accused deviated from the defence taken by him at the time of framing of notice and stated that he had vacated the rented premises on 14.12.2017 itself after serving of two notices to the complainant qua vacation of premises by the accused and had handed over the keys of the property to property dealer Sahil on 14.12.2017 itself. He also stated that at the time of execution of lease deed, he had issued two cheques of Rs.72,000/ and Rs.1,08,000/ as security to the complainant. He deposed on similar lines n his chief examination as DW1 as well. However, this defence of the accused does not inspire confidence because of the following inconsistencies in the defence of the accused:
(a). In his statement of defence against substance of accusation u/s 251 Cr.P.C. the accused stated that he had given 20 PDCs towards the payment of rent to the CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 12 to 26 complainant. However, later, the accused stated that he had given 22 PDCs to the complainant.
(b). In his statement of defence u/s 313 Cr.P.C. the accused brought up a totally new defence and deviated from his defence u/s 251 Cr.P.C. While, in his statement u/s 251 Cr.P.C., the accused stated that he had paid the rent for the month of January, 2018 as well to the complainant and had then vacated the premises, in his statement u/s 313 Cr.P.C., the accused has stated that he had vacated the rented premises in December, 2017 itself. Even during his chief examination as DW1, he stated that the rented premises were vacated by him in December, 2017 itself and further stated that he had inadvertently mentioned the date of vacating the premises as 14.02.2018 in his statement u/s 251 Cr.P.C. Even if this is to be believed for a moment, it is beyond comprehension as to why the accused would pay rent of January, 2018, as stated by him in his statement u/s 251 Cr.P.C., if he had vacated the premises in December, 2017 itself.
(c). Furthermore, in his statement u/s 313 Cr.P.C., the accused brought up a new version of his defence when he stated that he had handed over the keys of the rented CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 13 to 26 premises to property dealer Sahil upon vacating the same. Neither was this fact mentioned by the accused in his statement u/s 251 Cr.P.C. nor was any suggestion to that effect given by the counsel of the accused during cross examination of complainant.
(d). Not only this, in his statement u/s 313 Cr.P.C., the accused for the first time mentions the cheques of Rs.72,000/ and Rs.1,08,000/ given by him as security towards the rent of the premises upon the asking of the complainant. Again, neither was this fact mentioned by the accused in his statement u/s 251 Cr.P.C. nor was any suggestion to that effect given by the counsel of the accused during cross examination of complainant. This only appears to be an afterthought of the accused aimed at filling up the loop holes in his defence. In fact, admittedly, if the said cheques were given by the accused to the complainant at the time of execution of rent agreement, the accused failed to explain as to why the said fact was not mentioned in the rent agreement as well.
(e). Furthermore, in his statement u/s 313 Cr.P.C. , the accused has stated that the security amount of Rs.30,000/ was not refunded by the complainant to the accused.
CC No. 3118/2018Anil Kumar Gupta Vs. Ajay Kumar Page 14 to 26 However, this amount of Rs.30,000/, having been given as security to the complainant, surfaces for the first time at this stage and no explanation has been given by the accused as to why this fact was not mentioned by the accused in his legal notice sent by him to the complainant when he had vacated the premises.
(f). The factum of expenditure of Rs.2,900/ towards the repair of electric motor by the accused has not been mentioned by him anywhere in his statements earlier and has also not been mentioned by him in his legal notice sent to the complainant for vacating the rented premises. On the contrary, this statement of the accused rather strengthens the version of the complainant to the effect that the electric motor was, in fact, damaged by the accused during the occupancy of rented premises by him. Further, no proof by way of any bill or any other receipt/bank statement has been produced by the accused in order to show that said expenditure of Rs.2,900/ was indeed, incurred by him.
(g). Additionally, in his statement u/s 313 Cr.P.C., the accused has stated that he had made the payment towards electricity bill of December, 2017, however, as per his statement u/s 251 Cr.P.C., the accused has stated that he had CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 15 to 26 vacated the premises on 14.02.2018 and had also paid the rent for the month of January, 2018. Now, the electricity bill of Rs.6570/ was generated on 23.01.2018. The accused never admitted that he had paid the said bill as well or that he was not required to pay the same. Defence of the accused regarding vacating of premises in December, 2017 itself is not believable due to his inconsistent statements in defence. Now, the accused stated during his cross examination as DW1 that the aforesaid bill was paid by him in December, 2017 itself, which is strange as the said bill was only generated in the month of January, 2018 and could not have been paid prior to that date.
(h). In his statement u/s 313 Cr.P.C., the accused took the defence that the complainant had misused the cheque in question and a police complaint was also filed by the accused against the complainant in that regard. Neither was this fact mentioned by the accused in his statement u/s 251 Cr.P.C. nor was any suggestion to that effect given by the counsel of the accused during cross examination of complainant. Furthermore, the police complaint Ex.DW1/1 was produced before the Court for the first time during the chief examination of the accused and it is the admitted case CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 16 to 26 of the accused that no further action was taken by the police on the said complaint. The accused failed to explain as to why no action was allegedly taken by the police on the said complaint and if it was so, why did the accused fail to resort to further legal action qua the same. The accused also failed to explain as to why did he not instruct his banker to stop payment towards the cheque when the same was misused by the complainant.
(i). It is the case of the accused that he had served multiple notices upon the complainant with regard to vacation of the rented premises, however, only one notice admittedly is on record and the accused failed to produce on record the other notices allegedly sent by him to the complainant.
(j). During the chief examination, the accused for the first time mentioned the reason behind his vacating the premises prior to stipulated period of rent agreement. The accused stated that he had to vacate the said premises on account of acute water shortage, regarding which he had even complained to the complainant. But, if it was so, the accused failed to explain as to why was the said fact not mentioned by him in his legal notice Ex.CW1/3 sent to the CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 17 to 26 complainant. In fact, no proof has been placed on record by the accused regarding the repeated reminders sent by him to the complainant to that effect. Moreover, this statement of the accused is rendered incredulous as it has been stated by the accused that the water problem was suffered by him for few months, while, it is an admitted case that the accused had been in occupation of the rented premises for only 1.5 months, as per his own version.
(k). Lastly, the accused stated in his chief examination that he had vacated the rented premises earlier and had served the legal notice upon the complainant qua the same after vacation of the premises. However, nothing of this sort has been mentioned by the accused in his legal notice Ex.CW1/3 sent by him to the complainant.
10. From the above discussion, there appears to be no hitch in concluding that the cheque in question was issued by the accused in discharge of a legal liability towards the complainant in terms of Section 138 NI Act.
11. Last but not the least, the accused has also admitted his signatures on the cheque in question and he even failed to CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 18 to 26 bring to light any discordance in the version of the complainant. Thus, the testimony of the complainant went unimpeached. Moreover, the defence of the accused was marred by his own inconsistent statements.
12. Now, as far as the existence of a legal debt is concerned, the same is required to be proved beyond reasonable doubt by the complainant only after the accused rebuts the presumption u/s 139 of the Negotiable Instruments Act, on a scale of preponderance of probabilities. In the present matter, the complainant has produced on record the rent agreement as Ex.CW1/1 and the fixtures agreement Ex.CW1/2 in support of his averments. In fact, the same have even been admitted by the accused. The landlordtenant relationship between the complainant and the accused has also not been disputed by the accused. It has been argued by the counsel of the accused that there is nothing on record to show the damage for which the cheque in question amount has been claimed by the complainant. However, the averments of the complainant are in consonance with rent agreements Ex.CW1/1 and Ex.CW1/2 and his testimony to that effect has remained unimpached. Furthermore, it has also been argued by the accused that the attesting witnesses to the said agreements have not been CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 19 to 26 examined by the complainant. However, since the said agreements have not been disputed by the accused, rather, the accused has admitted the same, the need to examine the attesting witnesses does not arise. Even a holistic perusal of the cross examination of the complainant brings to light the fact that no inconsistency or contradiction in the case of the complainant has been highlighted by the accused. It is pertinent to mention here a judgment of the Hon'ble High Court of Delhi namely Hirein Sharma Vs. Jyoti Rajput and Ors. (Delhi HC 2014), wherein, the accused person was convicted by the Hon'ble High Court on the ground that the accused had taken different stands at different stages of the proceedings and, had thus failed to rebut the presumption u/s 139 NI Act. Similar is the case here as the defence of the accused has been marred by his own inconsistent and incongrous statements.
13. Thus, in light of the above discussion, the accused has failed to discharge the burden of rebutting the presumption that lay upon him under S.139 of the NI Act, and therefore, the issuance of cheque by the accused to the complainant as well as existence of a legally enforceable liability, stands duly established.
CC No. 3118/2018Anil Kumar Gupta Vs. Ajay Kumar Page 20 to 26 Whether the cheques were, on presentation, dishonoured due to reasons specified in Section 138 of Negotiable Instruments Act, 1881 ?
14. As per Section 138 of Negotiable Instruments Act, 1881, the cheque must have been returned back as unpaid by the bank 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. But it has been held by the Hon'ble Supreme Court in various cases that "insufficiency of amount standing to credit of account/exceeds arrangement with the bank" is a genus, and dishonour for reasons such as "account closed/ blocked/ payment stopped/refer to drawer/signatures do not match/image not found" are only species of that genus. In all such cases, it shall be presumed that the amount standing to the credit of the accused's account, was insufficient to honour the cheque, as such results can possibly be brought about by the accused himself. Whether or not the dishonour was brought about by reason of insufficiency of funds is a matter of evidence, and the burden to prove that the remarks/reason for dishonour mentioned in the return memo was not due to paucity of funds, CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 21 to 26 but due to some other valid cause, including absence of any debt or other liability, is upon the accused under Section 139 of the Negotiable Instruments Act. In all such cases, the question whether or not there was a legally recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial Court has to examine, having regard to the evidence adduced before it, and keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. The offence is not made out the moment a cheque is returned back as unpaid, but after a legal notice has been issued regarding the same, and the payment has still not been made. The net effect is that all the aforesaid reasons will fall within the purview of "dishonour" within the meaning of Section 138 of Negotiable Instruments Act [Modi Cement Ltd. Vs. Kuchil Kumar Nandi (1998) 3 SCC 249, NEPC Micon Ltd. Vs. Magma Leasing Ltd. (1999) 4 SCC 253, M/s Laxmi Dyechem Industries Vs. State of Gujarat (2012) 3 SCC 375].
15. In the present case, the return memo Ex.CW1/6 has been duly admitted by the accused. The reasons for the return, as per return memo is "funds insufficient", which falls straight within the purview of Section 138 of the NI Act. Hence, it can CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 22 to 26 be safely concluded that the return of the cheques as unpaid was due to reasons specified in Section 138 of the NI Act.
Whether the complainant has made a demand for payment of the amount of money in the cheques, by giving to the drawer, a notice in writing, within 30 days of the receipt of information by him, from the bank, regarding the return of the cheques as unpaid and the accused has failed to make the payment of the said amount of money to the complainant, within 15 days of the receipt of said notice?
16. The Hon'ble Supreme Court of India in C.C. Alvi Haji Vs. Palapetty Mohammad (2007) 6 SCC 555, has held that when the notice is sent by registered post, by correctly addressing the drawer of the cheque, the mandatory requirement of issuance of the notice in terms of clause (b) of proviso to Section 138 of Negotiable Instruments Act, stands complied with, as per the statutory presumptions under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. Any drawer who claims that he did not receive the notice sent by post, can within 15 days of the receipt of summons from the Court in respect of the complaint under CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 23 to 26 Section 138 of Negotiable Instruments Act, 1881, 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 the 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 summons from the Court along with 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 General Clauses Act and Section 114 of the Indian Evidence Act.
Needless to mention, the legal notice must satisfy the requirements of Section 138. The accused must be called upon, by such notice, to pay the amount which was payable under the cheque issued by it. [Central Bank of India Vs. M/s Saxons Farms (AIR 1999 SC 3607), M/s Rahul Builders Vs. M/s Arihant Fertilisers and Chemicals & Anr. (2008) Cr.L 4520 SC relied upon].
In the present case, the complainant has duly proved legal notice Ex.CW1/7 and postal receipt Ex.CW1/8, and has been successful in raising presumption of service in due course under Section 114 of the Indian Evidence Act and CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 24 to 26 Section 27 of the General Clauses Act. Also, it is a settled law that failure on part of the the accused to reply to the statutory notice under section 138 of the NI Act would lead to the inference that there is merit in the complainant's version (see Rangappa vs Sri Mohan, 2010 SC, relied upon in Santosh Mittal vs Sudha Dayal, 2014 Del HC). Though the accused denied the receipt of legal notice, he failed to adduce any evidence to prove the same and the testimony of CW1 also went unimpeached in this regard.
Thus, point number 3 also stands answered in the affirmative.
Whether the cheques were presented within the period of its validity or within, 3 months from the date on which they were drawn, and the complaint has been made, within a period of one month from the date when the cause of action has arisen under clause (c) of the proviso to Section 138 of Negotiable Instruments Act, 1881?
17. In the present case, both the requirements have been admittedly satisfied. The cheque bears the date 06.02.2018. Now, as per return memo, the same was returned on 07.02.2018. Further, legal notice was sent on 14.02.2018, and CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 25 to 26 the complaint was filed on 14.03.2018 which is within the period of one month from the date on which cause of action arose under clause (c) of proviso to Section 138 Negotiable Instruments Act, 1881.
Conclusion
18. In view of the above discussion, I am of the considered opinion that the complainant has established his case by leading cogent evidence and accused has failed to rebut statutory presumptions arising against him. Accused Ajay Kumar, is hereby convicted for the offence punishable under Section 138 NI Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.
Digitally signed by APOORVA Announced in the open Court APOORVA RANA Date: RANA on 02.03.2020 2020.03.04 16:42:15 +0530 (Apoorva Rana) Metropolitan Magistrate01 (South), NI Act/Saket/New Delhi/02.03.2020 CC No. 3118/2018 Anil Kumar Gupta Vs. Ajay Kumar Page 26 to 26