Delhi District Court
"Ramakrishna Urban CoOperative ... vs . Sh. Rajendra Bhagchand Warma" on 30 November, 2011
IN THE COURT OF SH. HARVINDER SINGH,
SPECIAL METROPOLITAN MAGISTRATE - 05,
DWARKA COURTS, NEW DELHI.
Barclays Bank PLC
through its Authorized Representative
Sh. Vaibhav Dubey ....................Complainant
Versus
Prem Bansal ....................Accused
C.C.NO.18664/10 dated 17.05.2010
PS. KALKA JI
under Section 138 of N. I. ACT, 1881
a) Sl. No. of the case : 18664/10
b) Date of commission of offence : 23.04.2010 Approximately
c) Name of the complainant : Barclays Bank PLC
d) Name of the accused, and his : Prem Bansal
S/o Sh. Kirori Mal,
R/o A - 41, Yadav Nagar,
New Delhi - 110 042.
e) Offence complained of : Under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : November 30, 2011
i) Brief
statement of the reasons for the decision :
1.By way of this judgment, I shall dispose of complaint under Section 138 ....................Contd/ : 2 : Negotiable Instruments Act, 1881 filed by the complainant i.e. Barclays Bank PLC through its authorized representative Sh. Ankush Gupta (Earlier AR) against the accused Prem Bansal S/o Sh. Kirori Mal, R/o A - 41, Yadav Nagar, New Delhi - 110 042.
2. The brief facts of this case as per allegations of the complaint are that the complainant i.e. Barclays Bank PLC is a Bank and at the request and representation of the accused, the complainant granted a Business Loan/finance facility to the accused upon agreeing to various written terms, conditions and covenants and execution of loan agreement no.996323. It is further alleged that the accused towards partial discharge of his said liability issued cheque bearing no.980991 dated 18.03.2010 for a sum of Rs.31,752/ drawn on State Bank of Bikaner And Jaipur in favour of the complainant. It is further alleged in the complaint that complainant presented the above said cheque for encashment which was returned dishonored vide cheque returning memo dated 20.03.2010 with the remarks "Exceeds Arrangement" by the banker of the accused. It is further alleged in the complaint that complainant served upon the accused a legal demand notice dated 30.03.2010 dispatched on 01.04.2010 through its advocate thereby demanding the payment of above said cheque amount in question within 15 days of the receipt of the said legal demand notice. It is further alleged in the complaint that the accused has failed to comply with the abovesaid notice, accordingly, this complaint was filed by the complainant on 10.05.2010.
.......................Contd/ : 3 :
3. After filing of complaint, authorized representative of the complainant namely Sh. Ankush Gupta (Earlier AR) led his presummoning evidence by way of affidavit and after hearing Ld. Counsel for complainant, summoning order was passed against the accused vide order dated 17.05.2010 and after the appearance of accused, a separate notice under Section 251 of Cr. P.C was put to the accused on 11.11.2010 to which accused pleaded not guilty and claimed trial and the matter was fixed for defence evidence/application under Section 145 (2) N. I. Act, if any. On 06.04.2011, the Ld. Counsel for the complainant filed an application for substitution of AR of the complainant alongwith copy of POA and the same was allowed on the even date and Sh. Vaibhav Dubey was substituted as new AR of the complainant and then the matter was fixed for CE and crossexamination on the request of both the parties.
4. To prove the case of the complainant, Sh. Vaibhav Dubey, AR of the complainant got examined himself as complainant witness and tendered his post summoning evidence by way of affidavit Ex.CW1/A1 and relied upon the documents Ex.CW1/1 and Ex.CW1/2 to Ex.CW1/5 already exhibited in presummoning evidence and further reiterated the contents of the complaint on oath before this Court. The cheque in question is exhibited as Ex.CW1/2, cheque returning memo as Ex.CW1/3, Legal Demand Notice as Ex.CW1/4 and original courier receipt as Ex.CW1/5. Thereafter, the witness of the complainant was ....................Contd/ : 4 : cross examined by the Ld. Counsel for the accused on 06.05.2011, 16.05.2011 and 08.07.2011 in length. After crossexamination, complainant's evidence was closed on the statement of the AR of the complainant on 08.07.2011.
5. After that the statement of accused was recorded under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. on 30.08.2011 in which all incriminating evidence along with exhibited documents were put to the accused Prem Bansal in which he admitted that he had availed loan from the complainant bank vide loan agreement no.996323. It was further admitted by the accused person that cheque in question bears his signatures, but, stated that he had issued 0506 blank signed cheques to the complainant at the time of grant of loan for purpose of security and cheque in question is one of them. The accused person submitted in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. that he had not received any Legal Demand Notice as alleged by the complainant. In answer to the another question, whether the cheque was dishonored vide cheque returning memo Ex.CW1/3 with the reasons "Exceeds Arrangement", the accused merely submitted that he has no knowledge about this fact. In answer to the another question, in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C., the accused stated that he wants to lead defence evidence.
.....................Contd/ : 5 :
6. Thereafter, the matter was fixed for defence evidence and on 12.10.2011, the accused moved an application under Section 315 of Cr. P.C. which was allowed by this Court and the accused person was examined as defence witness on 12.10.2011 itself and after crossexamination, the accused person closed his defence evidence on the same day and thereafter, the matter was fixed for final arguments. On 29.11.2011, the final arguments of both the parties were heard by this Court and the matter was fixed for final orders.
7. I have heard Ld. Counsels for both the parties and I have also perused the entire record of the case file and evidence on record.
8. Following Points arise for determination by this court :
(1) Whether complainant has proved on record the essential ingredients of offence under Section 138 of Negotiable Instruments Act, 1881 against the accused.
(2) Final order.
9. Point No. (1) - To decide this point lets analyze the main ingredients of Section 138 of Negotiable Instrument Act, 1881 and the evidence on record regarding these ingredients : ....................Contd/ : 6 :
(a) Whether the cheque was drawn/issued by the accused person to the complainant on an account maintained by him with the bank for discharge, in whole or in part, of any debt or other liability?
AR of the complainant in his examination in chief by way of affidavit has deposed in para no.02 to 04 of the affidavit Ex.CW1/A1 that the complainant bank granted loan to the accused under loan agreement number 996323 executed between the parties and the accused towards discharge of his partial liability issued cheque in question Ex.CW1/2 drawn on State Bank of Bikaner And Jaipur in favour of the complainant. On this point, the main contention of the accused is that he has given cheque in question as blank signed cheque alongwith 0506 other cheques to the complainant at the time of taking loan for the purpose of security and the same was presented by the complainant without intimation to him. The other defence raised by the accused is that his liability was less than the cheque amount in question on the date mentioned on the cheque i.e. 18.03.2010.
I have carefully considered the contentions of the accused and I have also gone through the evidence on record. It is pertinent to mention here that the accused has admitted in his statement under Section 313 of Cr. P.C. r/w 281 Cr. P.C. that he has availed loan from the complainant vide loan agreement number 996323, however, the accused has submitted that his liability towards the complainant was less than the cheque amount in question on the date mentioned on the cheque in question i.e. 18.03.2010.
.....................Contd/ : 7 : Now, the questions which are to be decided by this Court are whether the complainant has proved on record that the cheque was issued/drawn by the accused in the favour of the complainant on the date mentioned on the cheque in question for partial discharge of his liability or the accused has been successful in proving that the cheque in question was given by the accused as blank signed cheque to the complainant at the time of taking loan and further that the liability of the accused was less than the cheque amount in question on the date mentioned on the cheque i.e. 18.03.2010. The Ld. Counsel for the accused has relied upon the judgment of Hon'ble High Court of Bombay in the matter of "Ramakrishna Urban Cooperative Credit Vs. Sh. Rajendra Bhagchand Warma"
pronounced on 16.02.2010.
It is relevant to mention here Section 118 of Negotiable Instruments Act, 1881 which provides as follows :
Section 118 : Presumptions as to negotiable instruments : Until the contrary is proved, the following presumptions shall be made :
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity ...................Contd./ : 8 : Further, it is pertinent to mention here Section 139 of Negotiable Instrument Act, 1881 which provides as follows : "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
In view of presumptions provided by the Section 118 and Section 139 of Negotiable Instrument Act, 1881, presumption is that the cheque was issued/drawn for consideration and further the cheque was drawn or made on date which it bears. So, the onus was on the accused to rebut these presumptions. In this case, the accused person has deposed before this Court in his defence evidence that he had given 05 06 blank signed cheques to the complainant at the time of taking loan for the purpose of security and has also relied upon the fact that since, the mode of payment of EMIs in this case was through ECS, therefore, it also supports the case of the accused that the cheque in question was a security cheque given as blank signed cheque at the time of taking loan. During the course of the final arguments, the Ld. Counsel for the accused submitted that the AR of the complainant was not able to tell by whom the particulars of the cheque in question have been filled, so, it also supports the version of the accused that the cheque was not drawn on the date mentioned on the cheque, but was given by the accused as blank signed cheque for purpose of security at the time of taking loan.
First of all, lets discuss the law on security cheques. On security cheques in ......................Contd/ : 9 : the matter of Collage Culture & Ors. Vs. Apparel Export Promotion Counsil reported 2007 (99) DRJ 251 in Crl. M. C. No. 3011/2004, Hon'ble High Court of Delhi has held as under :
"It is urged that no actionable cause exists in favour of the complainant to make out the offence under Section 138 of Negotiable Instruments Act, 1881. It is urged that the sine qua non for the applicability of Section 138 of Negotiable Instrument Act, 1881 is the issuance of cheque for a debt which is due towards discharge of a liability. It is urged that a cheque given as a collateral security or as a security for payment of an amount which may become payable at a future date upon the happening or the nonhappening of an event i.e. towards a contingency can not be the foundation of an action under Section 138 of Negotiable Instruments Act, 1881."
"It would be relevant to note that the statute does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due, but payment postponed at a future date would attract Section 138 of the Negotiable Instruments Act, 1881. But, the cheque issued not for an existing due, but issued by way of a security, would not attract Section 138 of the Negotiable Instruments Act, 1881, for it has not been issued for a debt which has come into in existence."
I have gone through the evidence of the accused and crossexamination of the AR of the complainant and the case of the accused is that the accused issued 05 - 06 blank cheques to the complainant for the purpose of security. Perusal of the evidence of the accused further reveals that the accused has not deposed that the cheques were issued by him before the disbursal of loan to him and before his liability has actually become due. So, the law laid down by the Hon'ble High Court of Delhi in the matters of Collage Culture & Ors. Vs. Apparel Export Promotion Counsil reported 2007 (99) DRJ 251 in Crl. M. C. No. 3011/2004 and reiterated in "Ravi Kumar D......... Vs. State of Delhi & Anr." passed on 01.03.2011 is not applicable to the present facts and circumstances of this case and we have .....................Contd/ : 10 : to fall back on the presumption provided under Section 118 of Negotiable Instrument Act, 1881 as to date. The judgment of the Hon'ble High Court of Bombay in the matter of "Ramakrishna Urban Cooperative Credit Vs. Sh. Rajendra Bhagchand Warma" relied upon by the Ld. Counsel for the accused is also not of any help to the accused person in present circumstances. In view of the law and reasons discussed above, the accused has not being able to rebut the presumption as to date provided under Section 118 Negotiable Instrument Act, 1881, therefore, the defence of the accused that the cheque in question was given by the accused at the time of taking loan is hereby rejected.
The law on blank signed cheques as laid down by Hon'ble High Court of Delhi in the matter of "Ravi Chopra Vs. State & Anr." decided on 13.03.2008 in paragraphs number 15 to 21 is as under : Para 15 : "What appears to be clear from the above definitions that an essential feature of a cheque is that it has to be signed by the maker. This signing of the cheque need not be by hand alone. After the amendment to Section 6 in 2002, the NI Act acknowledges that there can be an electronic cheque which can be "generated, written and signed in a secure system." Nevertheless, the signing of the cheque is indeed an essential feature. But what about the other material particulars? Can the word "cheque" occurring in Section 138 NI Act include a blank cheque which is signed by the drawer but the material particulars of which are left unfilled at the time it was handed over to the payee? ................................." Para 16 : ".................................Section 87 - Effect of material alteration :
.................................The provisions of this section are subject to those of Sections 20, 49, 86 and 125."
Para 17 : "While it is correct that in terms of the above provision, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void, the expression "material alteration" has not been defined. Significantly, Section 87 has been made subject to Sections 20, 49, 86 and 125 NI Act. These provisions help up to understand what are not .....................Contd/ : 11 : considered 'material alterations' for the purpose of Section 87." Para 18 : "Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49................................." Para 19 : "The above provisions have to be read together with Section 118 NI Act which sets out various presumptions as to negotiable instruments. The presumption is of consideration, as to date, as to time of acceptance, as to transfer, as to endorsement, as to stamp. The only exception to this is provided in proviso to Section 118 which reads as under :
Provided .................................."
Para 20 : "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act." Para 21 : "The position in law has been explained in the judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not be the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the .....................Contd/ : 12 : cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged and burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden."
So, in the light of the abovesaid law, even if, for the sake of arguments, we may presume that the cheque in question was given by the accused to the complainant as blank signed cheque to the complainant, even then, it is no defence in the eyes of law.
Now, this Court is dealing with the last limb of this defence of the accused that since, the mode of payment of the EMIs was through ECS, therefore, there was no occasion for issuance of cheque in question by the accused. I have considered this contention of the accused. The AR of the complainant has deposed in the para no.04 of affidavit exhibited as Ex.CW1/A1 that the accused issued cheque in question in favour of the complainant towards partial discharge of his liability. In the opinion of this Court, there is no bar on payment through cheque, even in cases, where the mode of payment of EMIs is .....................Contd/ : 13 : through ECS and the accused has also not brought any evidence on record to prove that payment through cheque could not have been accepted by the complainant bank in this case, therefore, this contention of the accused is also rejected.
Now, this Court is dealing another defence of the accused that his liability was less than the cheque amount in question on the date mentioned on the cheque i.e. 18.03.2010. In view of the abovesaid discussions, it is clear that the presumption is in the favour of the complainant that the cheque was issued/drawn for consideration as provided in Section 118
(a) and Section 139 of Negotiable Instrument Act, 1881, so, the onus was on the accused to rebut this presumption. In this matter, the accused has not brought any evidence to prove that his liability was less than the cheque amount in question on 18.03.2010, whereas on the other hand, the witness of the complainant has deposed in his crossexamination that the accused took a loan of Rs.1,77,000/ in January 2008 from the complainant and the current liability of the accused is Rs.1,29,000/ approximately. The AR of the complainant has also filed on record statements of account of the accused to prove the liability of the accused and has exhibited the same as Ex.CW1/6, however, since, the document Ex.CW1/6 is not certified according to Section 65 (b) of Evidence Act, 1872, therefore, that document is not admissible in evidence and can not be consider by this Court. In these circumstances, mere bald plea of the accused that his liability was less than the cheque amount in question on the date mentioned on the cheque without any supportive evidence is not itself sufficient to rebut ......................Contd/ : 14 : the presumption as to consideration provided under Section 118 (a) and Section 139 of Negotiable Instrument Act, 1881, therefore, this defence of the accused is also hereby rejected.
In view of abovesaid discussions, I am of the opinion that the complainant has proved on record that cheque was drawn/issued by the accused in the favour of the complainant on an account maintained by him with the banker for discharge of his partial debt and liability towards the complainant.
(b) Whether the cheque was presented to the bank within a period of six months or within period of its validity?
The complainant witness deposed in his examination in chief in para no.05 of the affidavit Ex.CW1/A1 that the complainant presented the cheque in question for encashment, but, was returned dishonored by bank of the accused with remarks "Exceeds Arrangement" vide return memo Ex.CW1/3 dated 20.03.2010.
Perusal of record reveals that cheque Ex.CW1/2 is dated 18.03.2010 which got dishonored vide returning memo Ex.CW1/3 dated 20.03.2010. The accused person chose not to crossexamine the complainant witness on this point, but, merely stated in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. that he has no ....................Contd/ : 15 : knowledge about this fact. In view of the fact that evidence of the complainant has gone un controverted to this factum, so, it is proved on record that the cheque was presented within the period of its validity and within six months from the date of issuance of cheque.
(c) Whether the cheque so presented for encashment was dishonored? In this case, AR of the complainant who appeared as a witness on behalf of complainant has exhibited the cheque returning memo as Ex.CW1/3.
This factum of dishonourment is also not controverted by the accused person and he chose not to crossexamine the complainant witness on this point, therefore, in view of the evidence of the AR of the complainant and of the fact that the evidence of the complainant witness is not controverted by the accused person, it is proved on record that the cheque in question was dishonored vide cheque returning memo Ex.CW1/3 dated 20.03.2010 with the reason ''Exceeds Arrangement''.
(d) Whether the payee/complainant of the cheque issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque?
On this fact, the complainant witness has stated in his examination in chief ......................Contd/ : 16 : that the complainant got issued a Legal Demand Notice dated 30.03.2010 which is exhibited as Ex.CW1/4 through its counsel and was sent to the accused on 01.04.2010 vide courier receipt of which is exhibited as Ex.CW1/5. Perusal of the case file reveals that return memo exhibited as Ex.CW1/3 is dated 20.03.2010, the Legal Demand Notice exhibited as Ex.CW1/4 is dated 30.03.2010 and the courier receipt exhibited as Ex.CW1/5 is dated 01.04.2010. The accused person chose not to crossexamine the complainant witness on this point and merely stated in his statement under Section 313 of Cr. P.C. r/w 281 of Cr. P.C. that he had not received any Legal Demand Notice. Now, as far as this factum that the legal demand notice was issued and dispatched within 30 days from the receipt of return memo is concerned, there is no dispute about this fact as the accused chose not to crossexamination the complainant witness on this point. So, it is proved on record that complainant issued legal demand notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque.
(e) Whether drawer of the cheque failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice?
In this case, Sh. Vaibhav Dubey, witness of the complainant has deposed in para no.06 of his affidavit exhibited as Ex.CW1/A1 that the accused failed to comply with the legal demand notice Ex.CW1/4. On this issue, the accused person chose not to cross ......................Contd/ : 17 : examine the complainant witness and merely stated in his statement under Section 313 of Cr. P.C. r/w Section 281 of Cr. P.C. that he had not received any Legal Demand Notice. As far as this fact is concerned that the complainant had sent a legal demand notice exhibited as Ex.CW1/4 vide receipt exhibited as Ex.CW1/5, there is no dispute qua this fact as accused has not disputed it.
It is pertinent to mention here that the accused has also not disputed the address mentioned on the legal demand notice, therefore, it can be safely presumed that the notice was dispatched to the correct address of the accused.
Now, as far as the contention of the accused is concerned that he had not received any Legal Demand Notice, this Court sees no substance in the plea of accused, particularly in view of the Section 27 of General Clause Act, 1897 that once a document is served by post by properly addressing, prepaying and posting by registered post, unless contrary is proved, the service shall be deemed to be effected in ordinary course of post and further in view of the Section 114 of Indian Evidence Act, 1872 which provides as follows :
"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." r/w illustration (f) that the common course of business has been followed in particular cases.
.....................Contd/ : 18 : The Hon'ble Supreme Court of India in "K. Bhaskaran Vs. Sankarn Vaidhyan Balan" 1999 (7) SCC 510 has held as under : "No doubt Section 138 of Negotiable Instruments Act, 1881 does not require that the notice should be given only by "post". Nonetheless, the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then, it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice.
Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to be strategy of subterfuge by successfully avoiding the notice."
Further in M/s Indo Automobiles Vs. M/s Jai Durga Enterprises and others 2008(4) RCR (Civil), it was held that once the notice demanding payment has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective.
In this case, the Legal Demand Notice exhibited as Ex.CW1/4 was sent by the complainant through courier, receipt of which is exhibited as Ex.CW1/5. In this case, the accused has not produced any evidence to show that he has not received Legal Demand Notice. The defence of the accused that he has not received any Legal Demand Notice appears to be a afterthought which he has taken only for the purpose of taking defence. In ......................Contd/ : 19 : the opinion of this Court, in these circumstances, the notice should be presumed to be served upon the accused and contrary conclusion to it would lead to anomaly and would defeat the very object of the legislation. I am fortified by the judgment passed by the Hon'ble Supreme Court of India in the matter of "C. C. Alavi Haji Vs. Palapetty Mohammed & Anr." passed on 18.05.2007. In this judgment, the Hon'ble Supreme Court of India has held that "Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, can not 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 G. C. Act and 114 of the Evidence Act."
In this case admittedly, the accused has not made the payment of cheque amount in question till date and further accused has not led any evidence in support of his abovesaid defence to prove that the notice was in fact not served upon the accused.
In view of the law and reasons discussed in the above paragraphs, it is proved .....................Contd/ : 20 : on record that the notice was duly served upon the accused and further since, the accused has not made the payment of cheque amount in question till date, so, it is proved on record that the accused has not made payment to the complainant qua cheque amount in question within 15 days of receipt of Legal Demand Notice.
10. (ii) Final order :
In view of abovesaid discussions, I am of the considered opinion that complainant has proved against the accused all ingredients of Section 138 of Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused Prem Bansal S/o Sh. Kirori Mal, R/o A - 41, Yadav Nagar, New Delhi - 110 042 stands convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
Copy of the judgment be supplied to the accused free of cost.
Announced in the open Court on this day of November 30, 2011.
(HARVINDER SINGH) Spl. M.M.05/Dwarka Courts, New Delhi/30.11.2011