Delhi District Court
Krishan Lal Singla vs Amit Singla on 1 August, 2024
IN THE COURT OF MS. AAKANKSHA, JUDICIAL
MAGISTRATE FIRST CLASS (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No.3599/2020
CNR No. DLSW02-004578-2020
Krishan Lal Singla .........Complainant
Through: Mr. Sourav Goel, Advocate
Versus
Amit Singla ............Accused
Through: Mr. Shashank, Advocate
(1) Name of the Krishan Lal Singla
complainant
S/o Late Sh. Jagannath
Singla,
R/o C-82 Jiwan Park, Uttam
Nagar, New Delhi-110059.
Prop. Of M/s. JMD Store
Plot no.1, G.F. Block C,
Chanakya Place 1, New
Delhi-110059.
(2) Name of the accused Amit Singla
Authorised
signatory/owner/partner of
Shyam Timber Store,
Chakkar Road, Old Kath
Mandi, Jind, Haryana-
126102.
Ct. Case No. 3599/2020
Krishan Lal Singla v. Amit Singla
Page 1 of 22
(3) Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(4) Plea of accused persons Pleaded not guilty
(5) Date of institution of 24.01.2020
case
(6) Date of conclusion of 04.06.2024
arguments
(7) Date of Final Order 01.08.2024 [Accused failed
to appear on the earlier date
fixed for pronouncement of
judgment]
(8) Final Order CONVICTION
JUDGMENT
1. The complainant Krishan Lal Singla has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Amit Singla on 23.01.2020.
2. The factual matrix as can be culled out from the complaint is that the accused borrowed friendly loan of Rs.5,00,000/- from complainant through RTGS in his firm's bank account named as Shyam Timber Store on 20.01.2017. In first week Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 2 of 22 of September 2017, accused issued two cheques bearing no.000134 and 000135 both dated 25.09.2017 for a sum of Rs.1,50,000/- and Rs.2,50,000/- both drawn on HDFC Bank, but the same were returned unpaid on 03.10.2017. The complainant then issued a legal notice dated 17.10.2017 to accused, upon which accused issued fresh two cheques bearing no.012630 dated 20.01.2018 for a sum of Rs.50,000/- and cheque bearing no.012631 dated 20.02.2018 for a sum of Rs.50,000/- and four cheques of Rs.75,000/- each ie. cheque bearing no. 012632 dated 20.03.2018, cheque bearing no.012633 dated 20.04.2018, cheque bearing no.012634 dated 20.04.2018 and cheque bearing no. 012635 dated 20.05.2018 for a total sum of Rs.4,00,000/-. But accused requested the complainant not to present the said cheques and thereafter all of these cheques got expired. Thereafter accused transferred a sum of Rs.40,000/- on 24.01.2018 and a sum of Rs.20,000/- on 25.06.2018 through RTGS in complainant's bank account and issued three cheques of Rs.1,00,000/- each ie. cheque bearing no.012643, 012644 and 012645, all dated 05.07.2019, all drawn on Oriental Bank of Commerce but the same again got dishonored upon presentation and a legal notice dated 23.07.2019 was served upon accused. Yet again, accused issued four cheques in issue bearing no.000172 dated 01.09.2019 for a sum of Rs.20,000/-, cheque bearing no.000173 dated 30.10.2019 for a sum of Rs.1,00,000/-, cheque bearing no.000174 dated 30.10.2019 for a sum of Rs.1,00,000/- and cheque bearing no.000175 dated 30.10.2019 for a sum of Rs.1,00,000/-, all drawn from HDFC Bank, Huda Market, Jind, Haryana in discharge Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 3 of 22 of his part legal liability. Upon assurance of accused, complainant presented all the four cheques in question but they were returned unpaid for reason "funds Insufficient" vide return memo dated 07.09.2019 and 02.11.2019. Again upon assurance of accused, complainant presented the four cheques in question but they were again returned dishonored for remarks "funds Insufficient" vide return memo dated 30.11.2019 and 02.12.2019. Complainant then issued a legal notice dated 09.12.2019 to accused requesting for payment of the cheque amount within 15 days but the accused failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonor of the cheques in question.
3. With a view to establish a prima facie case in order to enable the court to summon the accused, complainant led pre- summoning evidence by way of affidavit Ex. CW-1/A. The complainant relied upon following documentary evidence:
(a) Stamped copy of statement of account, which is Ex.CW1/1.
(b) Copy of two cheques bearing no.000135 for a sum of Rs.2,50,000/- and 000134 for a sum of Rs.1,50,000/-, both dated 25.09.2017 drawn on HDFC Bank, which are Mark A.
(c) Original cheque return memo dated 03.10.2017 qua the above two cheqeus, which is Ex.CW1/2.Ct. Case No. 3599/2020
Krishan Lal Singla v. Amit Singla Page 4 of 22
(d) Office copy of legal notice dated 17.10.2017 qua the above two cheques, which is Ex.CW1/3.
(e) Undertaking of accused, which is Ex.CW1/4.
(f) Three cheque return memos dated 06.07.2019 qua cheque no.012643, 012644 and 012645, which are Ex.CW1/5(colly).
(g) Office copy of legal notice dated 23.07.2019 qua cheque no.012643, 012644 and 012645 alongwith postal receipt, which is Ex.CW1/6.
(h) Four original cheques bearing no.000172 dated 01.09.2019 for a sum of Rs.20,000/-, second cheque bearing no.000173 dated 30.10.2019 for a sum of Rs.1,00,000/-, third cheque bearing no.000174 dated 30.10.2019 for a sum of Rs.1,00,000/- and fourth cheque bearing no.000175 dated 30.10.2019 for a sum of Rs.1,00,000/-, all drawn on HDFC Bank, which are Ex.CW1/7 (colly).
(i) Cheque return memos dated 07.09.2019, 02.11.2019, 02.11.2019, 02.11.2019, which are Ex.CW1/8 (colly).
(j) Cheque return memos dated 30.11.2019, 02.12.2019, 02.12.2019, 02.12.2019, which are Ex.CW1/9 (colly).
(k) Office copy of legal notice dated 09.12.2019, which is Ex. CW1/10.
(l) Postal receipt, which is Ex. CW1/11.
(m) Tracking report, which is Ex.CW1/12.
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(n) Affidavit u/s 65B Evidence Act, which is Ex.CW1/B. Complainant closed his pre-summoning evidence on 24.01.2020.
4. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 24.01.2020. Accused entered his first appearance through his counsel on 07.02.2022.
5. Notice u/s 251 Cr.P.C. was framed against accused on 23.06.2023 stating out to him the substance of accusation, to which he pleaded not guilty and claimed trial. His defence was recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that the cheque in question bear his signature and he also filled the amount in words and figures but remaining particulars were not filled by him, he did not receive legal notice, however the same bears his correct address, he is not the proprietor of Shyam Timber Store but his father was the proprietor, the said firm is not operative after death of his father, he borrowed loan of Rs.5,00,000/- from complainant in the beginning and repaid the total sum of Rs.1,80,000/- in cash in 2-3 instances to complainant, after that he had handed over the cheques in issue as security to the complainant, he is not able to work and Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 6 of 22 therefore unable to pay, he admitted his liability to the tune of Rs.3,20,000/-.
6. Accused was not granted right to cross-examine the complainant as the accused has admitted his liability. Complainant's evidence stood closed on 23.06.2023.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 04.08.2023 wherein all the incriminating evidence was put to the accused and he was granted an opportunity to explain the circumstances appearing against him at trial. While explaining the circumstances appearing in evidence against him, accused stated without oath that his father took loan from complainant, he signed on cheques Mark A on behalf of his father but cheques Ex.CW1/7 (colly) does not bear his signature nor have been filled by him, he did not receive any of the legal notices but the same bears his correct address, his father was ill during which period he became authorised signatory of M/s. Shyam Timber Store, he was never proprietor of the said firm, he did not borrow any money from complainant, he does not know how much money was taken by his father, he signed cheques Mark A on instructions of his father since his father was paralysed, the cheques Ex.CW1/7 (colly) do not belong to him nor were issued by him and he does not know the complainant. Accused also preferred to lead evidence in his defence.
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8. At the stage of defence evidence, despite granting several opportunities to lead DE, accused failed to lead DE and therefore defence evidence stood closed on 23.02.2024.
9. At the stage of final arguments, Ld. counsel for complainant submitted that borrowing of loan of Rs. 5,00,000/- is admitted by accused in his plea of defence, the said amount was transferred through RTGS, out of the same accused only repaid a sum of Rs. 1,80,000/- and is liable to further pay Rs. 3,20,000/-, although accused denied being proprietor of Shyam Timber Store in his plea of defence, he admitted being authorized signatory of the firm, and thus prayed to convict the accused. The accused, on the other hand, failed to lead his submissions despite repeated opportunities.
10. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
11. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 8 of 22 Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the 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 the bank;
(iv) that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;Ct. Case No. 3599/2020
Krishan Lal Singla v. Amit Singla Page 9 of 22
(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
12. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 10 of 22 assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 11 of 22 the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of cross-examination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.
It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.
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13. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
13.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheques in question on his account maintained with a bank for discharge of any debt or other liability. In the instant case, accused has admitted his signature on the cheques in question Ex.CW1/7 (colly.) in his plea of defence recorded u/s 251 Cr.P.C. However later he denied his signatures on the same, in his statement recorded u/s 313 Cr.P.C. But accused has failed to lead any evidence to prove that the cheques in question do not bear his signature nor did he seek to summon or examine his banker to disprove his signature appearing on the cheque in issue. Further, the cheques in question have been returned dishonored for reason "Funds Insufficient" and not for difference in or mismatch of signature. Thus, it is deemed that it was the accused who signed all the four cheques in question. The cheques in question have been drawn on the account maintained by Shyam Timber Store with HDFC Bank. The accused has admitted himself to be authorised signatory of Shyam Timber Store during the period when his Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 13 of 22 father/proprietor was paralysed. The said fact has not been denied by accused at any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418, by observing that:
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:
(i) 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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.Ct. Case No. 3599/2020
Krishan Lal Singla v. Amit Singla Page 14 of 22
(iv) 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.
(v) It is not necessary for the accused to come in the witness box to support his defence."
13.2. In the instant case, the accused having admitted his signature on the cheques in question and the said cheques being drawn on the bank account of the firm of which accused was authorised signatory, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheques in question were issued by him in discharge of, whole or part of, legally enforceable debt or liability.
13.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).
Ct. Case No. 3599/2020Krishan Lal Singla v. Amit Singla Page 15 of 22 13.4. However, the accused failed to cross examine the complainant as he himself admitted his liability in his plea of defence recorded u/s 251 Cr.P.C. In his plea of defence, the accused denied being proprietor of M/s. Shyam Timber Store, but stated that his father was proprietor of the said firm and he himself borrowed loan of Rs.5,00,000/- from complainant and also repaid Rs.1,80,000/- in cash to the complainant. He further took plea that he handed over cheques in question as security to the complainant after part repayment of Rs.1,80,000/- and thus admitted his liability while stating that he signed the cheques in question and filled the amount in words and figures. However, at the stage of recording of statement u/s 313 Cr.PC, accused took a totally opposite defence stating that he neither took loan from complainant, nor does he know the complainant, nor he signed the cheques in issue. However, the said statement being merely recorded without administering oath, cannot be a substitute of evidence within the meaning of Section 3 Indian Evidence Act, 1872.
13.5. It is settled law that statement u/s 313 Cr.P.C is neither a substantive nor a substitute piece of evidence. It was held in the case of Sanatan Naskar & Anr. v. State of West Bengal, AIR 2010 SC 3507, that the answers given by accused in statement u/s 313 Cr.PC are of relevance for finding out the truth and examining the veracity of the case of prosecution. It was further held that if the statements made are false, the court is entitled to draw adverse Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 16 of 22 inference and pass consequential orders in accordance with law. The courts may rely on a portion of the statement of accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made u/s 313 Cr.PC should not be considered in isolation but in conjunction with evidence adduced by prosecution. Another important question that courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made u/s 313 Cr.P.C. as it cannot be regarded as the substantive piece of evidence.
13.6. However, accused failed to lead any evidence in his defence. His above statement u/s 313 Cr.P.C. is contradictory to his admission of liability u/s 251 Cr.P.C. Thus relying upon the admission of accused in his statement u/s 313 Cr.PC that he became authorised signatory of M/s. Shyam Timber Store during the period his father/proprietor of the said firm was ill, and that he signed other two cheques Mark A on behalf of M/s. Shyam Timber Store upon instructions of his father for the same liability qua which the cheques in question were also issued subsequently, it is deemed that the four cheques in question subsequently issued to complainant on the account of the firm under the signature of accused, were also issued by accused as authorised signatory of M/s. Shyam Timber Store, more so when accused has failed to prove to the contrary.
Ct. Case No. 3599/2020Krishan Lal Singla v. Amit Singla Page 17 of 22 13.7. Thus, it can be safely held that the accused has been unable to successfully rebut the presumption of law and discharge the burden of proof by raising a probable defence that the cheques in question were not issued in discharge of his liability.
The first legal requirement is, thus, proved in favour of complainant.
14. The second legal requirement is:
"That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier."
The cheques in question Ex. CW-1/7(colly) are dated 01.09.2019 and 30.10.2019. The cheque returning memos Ex. CW- 1/9 (colly) are dated 30.11.2019 and 02.12.2019 respectively, which proves that the cheques in question were presented twice within the period of its validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated in favour of complainant.
15. The third legal requirement is:
"That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank."Ct. Case No. 3599/2020
Krishan Lal Singla v. Amit Singla Page 18 of 22 Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and upon production of such bank memo, the burden shifts upon accused to disprove the same. In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheques in question were dishonored twice for the reason stated therein viz. funds insufficient and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has failed to disprove the same.
Thus, the third legal requirement is adjudicated in favour of complainant.
16. The fourth legal requirement is:
"The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
In the instant case, the cheques in issue were returned dishonored lastly on 30.11.2019 and 02.12.2019. The complainant sent a legal notice dated 09.12.2019 (Ex.CW-1/10) addressed to the accused. Speed post receipt dated 09.12.2019 is Ex. CW-1/11. The date of postal receipt proves that the legal notice was sent to accused Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 19 of 22 within thirty days of receipt of information of dishonour of cheques in issue.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
17. The fifth legal requirement is:
"The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
Accused has although denied receiving of legal notice but he has not disputed his address to which the legal notice was addressed. Thus, it can be said that the legal notice was properly addressed to the correct address of accused and by virtue of presumption u/s 27 General Clauses Act accused is deemed to have received the legal notice, if the notice has been sent to correct address by post.
17.1. Even otherwise, law expects a person pleading non- receipt of any demand notice to prove his bona fide by making the payment of the cheque amount within 15 days of receiving court summons. This is crystallized by the verdict of Hon'ble Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555:
Ct. Case No. 3599/2020Krishan Lal Singla v. Amit Singla Page 20 of 22 "17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 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."
17.2. In the case at hand, despite issuance of summons and appearance of accused before the court, accused has failed to pay the cheque amount to the complainant and thus is precluded from raising the plea of non-service of demand notice. It is also an undisputed fact and a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
18. All the legal requirements constituting an offence u/s 138 NI Act have been proved in favour of complainant and against Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 21 of 22 the accused. Accordingly, accused Amit Singla is held guilty for the alleged offence u/s 138 NI Act.
19. Now to come up for arguments on quantum of sentence. Copy of this judgment be given Dasti to the convict free of cost as per rules.
Digitally signed byAnnounced in the open AAKANKSHA AAKANKSHA Date: court on 01st August, 2024 2024.08.01 15:37:52 +0530 (Aakanksha)
Judicial Magistrate First Class (NI Act)-07 South West District, Dwarka Courts, New Delhi Ct. Case No. 3599/2020 Krishan Lal Singla v. Amit Singla Page 22 of 22