Delhi District Court
10. In View Of The Judgment Of A. C. ... vs . State Of on 24 December, 2021
IN THE COURT OF METROPOLITAN
MAGISTRATE (NI ACT) Digital Court No.-01, SOUTH
EAST DISTRICT, SAKET DISTRICT COURT, DELHI
Presided by: Ms. Sonam Singh
SHAKUN SINGH V. CHANDESHWAR SINGH
CC. No.397/2020
Police Station: Badarpur
Under Section: 138 Negotiable Instruments Act (in short "NI
Act")
CNR No. DLSE02-017658-2020
A. Registration no. of the case: 397/2020
B. Name, parentage, and address of the complainant:
Ms. Shakun Singh D/o Late Sh. Rajapat Rao, R/o H. No.30A,
Gali No.4, Near Gate No.3, Molar Band Extension, Badarpur,
New Delhi- 110044
C. Name, parentage, and address of the accused:
Mr. Chandeshwar Singh S/o Sh. Late Sh. Saravedev Singh,
R/o B-119, Main Road, Block-B, 60 Foota Road, Near Swaraj
Mandir, Baba Colony, Burari, Delhi-84
D. Offence complained of: Under Section 138 Negotiable
Instruments Act, 1881 (In short "NI Act".)
E. Plea of the accused: Pleaded not guilty. He stated that he had
not handed over the cheque in question to the complainant.
The said cheque was kept at his home and was taken away
from the home without his knowledge. The payee's
SONAM SINGH Digitally signed by SONAM SINGH
Date: 2021.12.24 16:35:20 +05'30'
CC. No.397/2020
SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 1
name/complainant's name is not written by him. Accused did
not have any liabiity towards the complainant
F. Final order: Acquittal
G. Date of Final order: 24.12.2021
H. Date of institution: 11.12.2020
I. Final arguments heard on: 21.12.2021
J. Date of reserving: 21.12.2021
K. Date of pronouncement: 24.12.2021
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, I shall dispose of the present case filed by the complainant, Shakun Singh against her father- in-law, the accused, Chandeshwar Singh, U/s 138 of The Negotiable Instruments Act, 1881 (in short "NI Act"). The brief facts necessary for the disposal of the present case is hereby described as under:-
Complainant's Case
2. The case of the complainant is that she is the daughter-in-
law of the accused, as she is married to his elder son, namely, Sh. Ajit Singh. She alleged that in August 2020, the accused who is her father-in-law promised to pay her monthly maintenance of Rs 45,000/- every month for his grandson, namely, Sh. Oum Singh.
SONAM Digitally signed by
SONAM SINGH
SINGH Date: 2021.12.24
16:37:00 +05'30'
CC. No.397/2020
SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 2
3. She alleged that the accused had promised to pay an amount of Rs.45,000/- per month for his grandson's maintenance in addition to Rs.1,00,000/- for her maintenance. She alleged that in lieu of the promised amount, he handed over a cheque bearing no. 682146 dated 13.08.2020 for a sum of Rs.45,000/- drawn on State Bank of India, Branch Siwan Bazar (01238), Babunia More, Dist. Siwan, Bihar (hereinafter referred to as 'the cheque in question').
4. It was alleged by her that owing to their relationship, she agreed to take the cheque in question from the accused and deposited it in the State Bank of India (SBI), Mathura Road, Badarpur. She alleged that on 09.09.2020, she contacted SBI bank, Mehrauli branch, as she had not received any notification regarding the clearance of the cheque. On checking her bank account statement, she got to know that the cheque was initially cleared but due to the accused being hand-in-glove with certain officials from the said bank, the amount of Rs. 45,000/- which was credited in her account was subsequently debited from her account.
5. The complainant alleged that since she suspected that the accused had cheated her, she requested the bank to SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:37:16 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 3 disclose the status of her cheque. After much inconvenience caused to her, the bank told her that due to the difference between words and figures written on the cheque, it was wrongly cleared by them initially.
6. She alleged that the amount was debited from her account as the accused had conspired with the bank official. It was alleged by her that she was appalled when she got to know that the cheque was dishonoured on the ground of "CHEQUE IRREGULARY DRAWN/AMOUNT IN WORDS AND FIGURES DIFFERS" vide return memo dated 11.09.2020. She alleged that she contacted the accused in this regard but he refused to pay the amount of the cheque in question.
7. It was alleged by her that she got to know from the Bank that the accused had personally asked the bank to stop the payment of the cheque in question and he had deliberately written the wrong amount in words on the cheque i.e. "Forty Thousand Only" rather than Rs. 45,000/- which was mentioned in figures to defraud the complainant.
8. This constrained the complainant to send a legal demand notice to the accused dated 02.10.2020, which when went unheeded. Digitally signed SONAM bySINGH SONAM SINGH Date: 2021.12.24 16:37:33 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 4
9. Hence, on non-payment by the accused of the cheque amount within 15 days of service of legal notice, the present complaint came to be filed seeking prosecution of the Accused of the offence punishable under Section 138 NI Act Summoning Order, Appearance of Accused, and Admission to Bail
10. In view of the judgment of A. C. Narayanan Vs. State of Maharashtra & Anr." (2014) 11 SCC 790, by only relying upon the evidence by way of affidavit, which is Ex. CW-1/A and upon the documents on record, without formally examining the complainant in support of complainant's case, the Ld. Predecessor had taken cognizance and had issued summons upon the accused vide order dated 07.01.2021. The Accused entered an appearance on 13.04.2021 and was admitted to bail.
Notice U/s 251 Cr.P.C.
11. Thereafter, notice U/s 251 Criminal Procedure Code, (in short "CrPC") P.C for the offence U/s 138 NI Act was framed against the accused on 16.11.2021 to which, the accused pleaded not guilty and claimed trial. In his plea of defence made at the time of notice U/s 251 Cr. P.C, the accused stated that he had not handed over the cheque in question to the complainant. He stated that the said cheque was kept at his home and was taken away without SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:37:52 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 5 his knowledge. Further, he stated that he does not know who took away the said cheque. He also stated that the payee's name/complainant's name is not written by him on the said cheque.
Statement of Accused under Section 294 CrPC.
12. The Statement of the Accused on the same date was also recorded under Section 294 CrPC whereby he admitted his signatures on the cheque in question and admitted the cheque return memo. Consequent to his admission, witnesses cited at serial no.2, 3, and 4 i.e. Banker of the accused, Banker of the complainant, and concerned officials of the banker of the complainant in the list of witnesses by the complainant were dropped.
Application moved under Section 145 (2) of the NI Act and matter tried as summons case.
13. The application under Section 145 (2) of the NI Act to cross-examine the complainant was moved by the Accused, which was allowed vide order dated 16.11.2021. Further, vide the same order, this Court deemed it appropriate not to try the case as a summary trial, since a sentence for imprisonment exceeding one year could have been passed, if the trial would have resulted in a conviction, therefore, this case was tried as a summons SONAM Digitally signed by trial case. SINGH SONAM SINGH Date: 2021.12.24 16:38:11 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 6 Complainant Evidence
14. Thereafter, the matter was listed for the recording of evidence on 22.11.2021. To prove her case against the accused, the complainant/CW1 appeared as a witness. The evidence was recorded through the Virtual Mode on the Cisco Webex Meeting, in compliance with the guidelines by the Hon'ble High Court, namely, the 'Digital NI ACT Courts in Delhi, Project Implementation Guidelines 2020' and the 'Video Conferencing Rules of 2021'. At the post summoning stage, the complainant/CW-1 tendered her affidavit which is Ex. CW-1/A, which was filed at the time of pre-summoning evidence. In her evidence by way of affidavit, the complainant reiterated all the facts, as stated in the complaint on oath.
Documents on record:
15. The Complainant/CW1 Ms. Shakun Singh relied on the following documents:
Sr. No Exhibits/ Nature of documents Marks
1. Ex.CW1/1 Original cheque bearing no.682146 dated 13.08.2020 for a sum of Rs.45,000/-
written in figures and "Forty Thousand Rupees only"
Digitally signed by SONAMSONAM SINGH SINGH Date: 2021.12.24 16:38:34 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 7 written in words, drawn on State Bank of India, Branch Siwan Bazar (01238), Babunia More, Dist. Siwan, Bihar.
2. Ex.CW1/2 Return memo dated 11.09.2020.
3. Ex.CW1/5 Copy of Adhaar Card of the (OSR) complainant.
4. Ex.CW1/6 Copy of bank statement for the period from 01.08.2020 till 09.09.2020 of the complainant's bank account
6. Mark A The envelope containing (Colly.) legal demand notice addressed to the accused along with tracking reports.
7. Mark B Proof of service of the legal (Colly.) demand notice via email and WhatsApp.
16. The court will discuss the testimony of the Complainant/CW1 Ms. Shakun Singh, at the time of appreciation of evidence.
SONAM Digitally signed by SONAM SINGH SINGH 16:38:59 +05'30' Date: 2021.12.24 CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 8 Arguments on the summoning of witnesses
17. On 29.11.2021, arguments were heard on behalf of both the parties on summoning the witnesses mentioned at Sr. Nos.4 and 5 in the list of complainant's witnesses i.e. concerned official from the banker of the complainant i.e. SBI, Mehrauli Main Bazar, Mehrauli, New Delhi and the concerned postman of the Post Office Kidwai Nagar East, New Delhi. Concerning the postman as a witness, the court was of the opinion that that since it is an admitted fact that the accused is residing at the same address on which the legal demand notice was served as the address finds mention in the bail bond furnished by the accused, the postman need not be called. The court relied on the observations of Hon'ble Apex Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555. as given below:
"15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:39:27 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 9 of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa [(2006) 6 SCC 456 : (2006) 3 SCC (Cri) 114] this Court observed: (SCC p. 462, para 13) "One can also conceive of cases where a well-intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:39:54 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 10 genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons."
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 GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
SONAM Digitally signed
by SONAM SINGH
SINGH Date: 2021.12.24
16:40:22 +05'30'
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SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 11
18. Thereafter, the Court dealt with the summoning of a concerned official from the banker of the complainant i.e. SBI, Mehrauli Main Bazar, Mehrauli, New Delhi mentioned at Sr. No. 4 in the list of complainant's witnesses. Ld. counsel for the complainant stated that the said witness cannot be summoned, since, the witness has already been dropped on account of the statement of the accused u/s 294 CrPC. Per contra, Ld. Counsel for the accused drew the attention of this Court to the discrepancy between the cheque number mentioned in the return memo and the number mentioned in the cheque in question and submitted that the bank witness will be able to assist the court in finding out the truth in the present case. This court stated that every trial is a voyage of discovery in which truth is the quest. The truth should be the guiding star in the legal process and it is the duty of every Judge to discover the truth to do complete justice. In view of the submissions made by the Ld. Counsel for the accused which was relevant in the final adjudication of the case and considering that no prejudice was caused to the complainant who had the right to examine the witness, the Court took an inclusionary approach rather than an exclusionary approach to dispense justice. Thus, the concerned official from the banker of the complainant i.e. SBI, Mehrauli Main Bazar, Mehrauli, New Delhi mentioned at Sr. No.4 in the list of witnesses was summoned as a court witness on 09.12.2021. SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:40:52 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 12 Evidence of Court Witness
19. Court Witness 1/ Sh. Somnath Pallai, Deputy Manager, SBI, Mehrauli appeared in the witness box and relied upon the following documents. His testimony will be discussed at the time of appreciation of evidence.
Sr. No Exhibits/ Nature of documents Marks
1. Ex. Court A letter issued by the bank Witness/1 manager provides erroneously the cheque number mentioned in the return memo dated 11.09.2020 is 682148 instead of 682146.
2. Ex. Court Copy of statement of account Witness/2 of Ms. Shakun Singh which mentions the date, cheque number, and transaction details regarding the cheque.
3. Ex.Court Copy of the cheque along Witness/3 with a copy of the return (Colly.). memo.
SONAM Digitally signed by SONAM
SINGH
SINGH Date: 2021.12.24 16:41:25
+05'30'
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SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 13
THE STATEMENT OF THE ACCUSED UNDER SECTION 313 Cr. PC. / DEFENCE OF THE ACCUSED
20. The Accused in his statement under Section 313 r/w Section 281 Cr.P.C., on 17.12.2021 denied the entire evidence put to him. He denied handing over the cheque to the complainant. He denied receiving the legal demand notice. He asserted that he had filled the particulars of the cheque except for the name of the payee and kept the prepared cheque at his native residence in Bihar. He alleged that he did not know how the discrepancy between the amount in words and figures crept into the cheque.
21. He asserted that he did not make a police complaint regarding the misuse of the cheque, as the complainant is his daughter-in-law and the impression it would carry in the society if he had filed.
22. He stated that he did not know how and when the cheque in question was taken away from his custody. He alleged that only when he received a message from his bank that an amount of Rs.45,000/- was debited from his account, then he had contacted his bank. He asserted that he asked the bank as to how and on whose instructions, the said amount was debited. The bank informed him regarding the cheque in question where the complainant was mentioned as a payee. SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:41:59 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 14
23. He stated that he told the bank that he had not issued any such cheque in the name of the complainant and thereafter, on 01.09.2020, the amount of Rs.45,000/- was credited back to his account. He alleged that he had received the information regarding the said credit from his bank by way of SMS. The accused did not lead any evidence in his defence.
FINAL ARGUMENTS
24. The Court heard the final arguments on 21.12.2021.
ANALYSIS AND FINDINGS
25. I have heard the submissions of Sh. Akash Nagar, Ms. Ruchi B Nagar, and Sh. Samarpit Chauhan, Ld. Counsels for the Complainant as well as that of Sh. Sh. Randhir Kumar Singh, Ld. counsel for the accused. The court has also diligently gone through the complaint, documents, evidence recorded, and the entire material on record.
26. To decide the present case, it is important to discuss the provisions.
27. At this stage for reference, the relevant provisions of the NI Act are hereby reproduced as under:-
SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:42:49 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 15 Section 138 of NI Act: Dishonour of cheque for insufficiency etc. of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years] or with fine which may extend to twice the amount of the cheque or with both:
Provided that nothing contained in this section shall apply unless-
(a) 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;
(b) the payee or the holder in due course of the cheque, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be , to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation- For the purposes of this section "debt or other liability" means a legally enforceable debt or other liability.
Section 142 of NI Act: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:43:29 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 16
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
28. In Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000) 2 SCC 745, the Hon'ble apex court discussed the conditions of section 138 NI Act which are to be fulfilled for a cause of action to arise in favour of the Complainant. It was stated that the following facts as given below must be shown to exist for initiating prosecution for the offence u/s 138 NI Act. :
"(i) 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 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 cheque is returned by the bank unpaid, either because 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) 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 15 days (now 30 days) SONAM Digitally signed by SONAM SINGH SINGH 16:44:12 +05'30' Date: 2021.12.24 CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 17 of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) 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."
29. The aforesaid ingredients are to be satisfied cumulatively and only then the person who had drawn the cheque can be deemed to have committed an offence under Section 138 NI Act.
30. The object underlying Section 138 of the NI Act is to promote faith in the efficacy of the banking system and give credibility to negotiable instruments, in business transactions. The intention is to punish those unscrupulous persons, who issued cheques for discharging their liabilities, without really intending to honour the promise.
Appreciation of Evidence and Application of law to the facts of the case
31. After going through the record, and hearing submissions advanced by the Ld.Counsels for the Complainant and the Ld. Counsel for the accused, it is apparent that three main issues arise for examination:-
32. Firstly, the issue of service of legal demand notice;
secondly, the issue regarding the cheque being valid and return memo being fabricated; and lastly, the issue as to SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:44:58 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 18 whether the cheque in question can be said to have been issued in discharge of a legally enforceable debt or liability or not.
Non-service of legal demand notice
33. The accused has taken the defence of non-service of legal demand notice. As already discussed above, vide order dated 29.11.2021, this issue has been decided by the court. However, for clarity, this defence is hereby discussed in detail. The complainant in her complaint and evidence by way of affidavit has alleged that the legal demand notice dated 02.10.2020 which is Mark C was sent to the accused through speed post. The envelope containing the legal demand notice addressed to the accused along with its tracking reports are Mark A (Colly.). It is an admitted fact that the accused is residing at the same address on which the legal demand notice was served, apparent from the bail bond furnished by the accused, where he has mentioned the same address. Further, the accused in his statement under Section 313 CrPC r/w Section 281 CrPC also admitted that the address mentioned in the demand notice is his address.
34. Section 114 of the Indian Evidence Act, 1872 (in short "IEA") applies to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:45:49 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 19 delivered at the address of the addressee. Section 27 of the General Clauses Act, 1897 (in short "GCA") provides that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. Therefore, the legal notice having been sent by Registered Post, a presumption of due service arises, as per Section 27 of GCA read with Section 114 of the IEA. Considering the presumption of due service, the accused was under an obligation to lead evidence to prove that the notice was not served on him. However, he has failed to bring any evidence to rebut the presumption of due service of legal demand notice. Mere denial of not receiving the legal demand notice would not amount to proving his defence. He could have examined the postal authorities to show that he was not was residing at the said address at the given point of time or due to any other reason the service was not done.
35. In any case, in view of the judgment of the Hon'ble Apex Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (supra) which categorically held that the service of summons of the court is a sufficient opportunity for the accused to pay the cheque amount and avoid prosecution. Further, it held that an accused who fails to pay the amount within 15 days of the service of summons, clearly cannot hide behind the technical defence of non-service of the legal notice. The relevant extracts from the decision SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:46:40 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 20 have already been reproduced above. In view of the aforesaid circumstances and considering that the accused has appeared on service of summons on the same address, this court holds that the legal notice dated 02.10.2020 was duly served on the accused.
36. Further, in view of the aforesaid detailed discussion, the objections which were taken by the Ld. counsel for the accused on the documents Mark A, B, and C (described above) i.e. Envelope containing legal demand notice along with tracking report, proof of service of legal demand notice via whatsapp and email, and copy of legal demand notice stand dismissed.
Validity of Cheque and genuineness of the Return Memo
37. The Ld. counsel for the accused argued that the cheque was not valid and the return memo was fabricated. In this regard, it is pertinent to note that it is an admitted fact that the cheque in question was initially honoured on 28.08.2020 and the amount of Rs.45,000/- was credited to the account of the complainant. Further, it is an admitted fact that on 01.09.2020, the amount was credited back into the account of the accused. The argument of Ld. counsel for the accused was the cheque has been dishonoured on the ground of fault of the bank as there was a difference in the amount written in words and figures of the cheque. He argued that the bank tried to amend its mistake as it had SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:47:37 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 21 wrongly credited the amount of figures of Rs 45,000/- and not because of the dishonest intention of the accused. He has relied upon the endorsement on the return memo which is Ex.CW1/2 which mentions that the ground for dishonour is "cheque irregularly drawn/amount in words and figures differs".
38. This argument of the Ld counsel for the accused is not satisfactory, in view of admission of the accused in his statement under 313 CrPC where he categorically stated that he had given the instructions to the bank to debit the amount from the account of the complainant. In this regard, the testimony of the Court Witness/Sh. Somnath Pillai, Deputy Manager, SBI, Mehrauli Branch, Delhi is relevant as he succinctly explained in his deposition that the cheque was dishonoured on account of instructions of the accused. The examination in chief of Court Witness/Sh. Somnath Pillai, Deputy Manager, SBI, Mehrauli Branch, Delhi conducted on 09.12.2021 in this regard is reproduced below:
"The cheque number which was presented was 682146. It was presented on 28.08.2020. The amount of the cheque i.e. Rs.45,000/- was credited to Ms. Shakun Singh's bank account on 28.08.2020. After the bank manager received the information from the accused Chandeshwar Singh that he has not issued the cheque, the amount Rs.45,000/- which was credited into Ms. Shakun Singh's bank account was put on hold and thereafter, it was credited into Chandeshwar Singh's bank account on 01.09.2020. The bank manager received the instruction from Chandeshwar Singh on 28.08.2020 and thereafter he Digitally signed by SONAM SONAM SINGH SINGH Date: 2021.12.24 16:48:39 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 22 put the amount on hold in Shakun Singh's bank account. The cheque in question has been dishonored on the instructions of Chandeshwar Singh."
39. It is also pertinent to note that the amount which was credited was Rs 45,000/- which was written in figures. Section 18 NI Act provides that if the amount undertaken or ordered to be paid is stated differently in figures and words, the amount stated in words shall be the amount undertaken or ordered to be paid. The Court witness Sh. Somnath Pillai, Deputy Manager, SBI explained in the cross-examination by the Ld. counsel for the accused that he did not handle the transaction and the person concerned should have taken care by reading the entire cheque. This implies that the person who handled the transaction wrongly credited the amount of Rs 45,000/- written in figures, although he should have credited Rs. 40,000/- written in words. But the fact remains that ultimately the cheque was dishonoured on instructions of the Accused who gave instructions to the bank to reverse the entry, admitted by him in his statement u/s 313 CrPC.
40. Ld. counsel for the accused has relied upon a judgment M/s Shree Tyres &Ors. V. State and Anr 2020 SCC OnLine Del 929. He has argued that due to the amount written on the cheque being different in figures and words, the cheque is not valid. However, the facts of the said case are different , in that case, the amount in figures Digitally signed by SONAM SONAM SINGH SINGH Date: 2021.12.24 16:49:44 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 23 on the cheque in question was written as "Rs.44,18,896/-"
whereas, the amount in words was written as "Forty Four Lacs Eighteen Lacs Eight Hundred and Ninety-Six only", due to which the cheque was held to be invalid on the face of it because of uncertainty as to the amount written in words. It was not considered as a valid cheque in terms of Section 6 NI Act by the court. But in the present case, both the amount written in words and figures are certain and hence, the judgment does not assist the accused in his argument. Section 18 NI Act as stated above also comes into play.
41. Ld counsel for the accused also argued that since the return memo does not mention the number of the cheque in question, it cannot be relied upon. But this argument also cannot be accepted, in view of the deposition of the Court witness, Sh. Somnath Pillai, Deputy Manager, SBI. The Court witness brought a letter issued by the bank manager which is Ex. Court Witness/1 which provided that erroneously the cheque number mentioned in the return memo dated 11.09.2020 is 682148 instead of 682146. He further explained in his cross-examination conducted by Ld. counsel for the complainant that the typographical mistake of the cheque number in the return memo is a "clerical mistake and should not have occurred." SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:50:55 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 24
42. The accused did not bring any evidence to show that there was any conspiracy between the complainant and the bank to issue a fabricated return memo. Further, in this regard, it is relevant that the accused has admitted having signed the cheque on a bank account maintained in his name and filled all the particulars of the cheque except the name of the complainant.
Question of Liability
43. The last issue is as to whether the cheque in question can be said to have been issued in discharge of a legally enforceable debt or liability or not.
44. Now, once these foundational facts are admitted, it is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 NI Act and another under Section 118 (a) of the N I Act, which is a presumption of the cheque having been issued in discharge of legal liability and drawn for good consideration, arises.
45. Section 118 of the N.I Act and Section 139 NI Act are reproduced for ready reference:
Section 118 NI Act provides: "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, Digitally signed SONAM bySINGH SONAM SINGH Date: 2021.12.24 16:52:08 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 25 when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;
Section 139 of the NI Act further provides as follows:
"Presumption in favour of holder - 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"
46. Hence, in view of the aforesaid provisions, it is explicit that on proof of foundational facts, the Court will presume that cheque was made or drawn for consideration and that it was executed for discharge of debt or liability, once the execution of negotiable instrument is either proved or admitted and the burden of proof lies upon the accused to rebut the said presumption.
47. This is an example of the rule of 'reverse onus' in action, where it is an obligation on the accused to lead what can be called 'negative evidence'. The accused is not to prove a fact affirmatively, but to lead evidence to demonstrate the non-existence of debt or liability. Since, this rule is against the general principle of the criminal law of 'presumption of innocence in favour of the accused' and considering that such negative evidence, by character is difficult to lead, the threshold for the accused to rebut the presumption is on the scale of the preponderance of probabilities. This was held in Sangappa v. Sri Mohan' SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:53:26 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 26 [(2010) 11 SCC 441], This means that the lack of consideration or a legally enforceable debt is not be proved beyond all reasonable doubt.
48. The accused is required to either prove the non-existence of the liability or the existence of it so improbable that a prudent man would think that it does not exist. The accused can do this either by leading direct or relying upon circumstantial evidence in his defence. Alternatively, the accused can punch holes within the case of the complainant by way of cross-examination. Thereafter, the onus of proof shifts back to the complainant, and the presumptions under Sections 118 and 139 of the Act, will not again come to the complainant's rescue.
49. In the light of the aforesaid provisions and principles of law, let us proceed to examine the defence of the accused and answer whether the same is a plausible one.
50. I am of the opinion that in the present case, the accused has succeeded in rebutting the presumption of legal liability, by exposing the inherent improbability of the case of the complainant. Even though the accused has not led any defence evidence, however various intrinsic infirmities in the case of the complainant have been SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:54:52 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 27 exposed in her cross-examination conducted on 22.11.2021.
51. It is briefly reiterated that the complainant has claimed that the accused agreed to provide her with monthly maintenance of Rs. 45,000/- for his grandson, Sh. Oum Singh in addition to Rs. 1 lakh for her maintenance. CW1/Ms. Shakun Singh/complainant in her cross- examination on 22.11.2021 deposed that she had filed a case under the Domestic Violence Act (in short "DV Act") against the accused claiming maintenance in general. She deposed that the present case and the case under DV Act were "filed simultaneously with a gap of 1or 2 days". The fact that in an acrimonious relationship between the parties, where the complainant has filed a case against the accused, he would orally agree to give maintenance for her and his grandson does not stand to reason and goes against the grain of ordinary human conduct.
52. Further, the improbability of the complainant's case is manifest from her cross-examination, wherein she deposed that when the accused orally promised to pay her the said maintenance, "my cousin, namely Jeetu ( mama' son), my elder jija ji, namely Ajay Singh and my younger sister's husband, namely Shakti Singh were present". But SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:56:38 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 28 none of these people were cited in the list of witnesses filed by the complainant to corroborate her version.
53. The improbability of the complainant's story is further manifest from the fact that she has not filed any case for maintenance and only a case under DV Act has been filed. She has failed to bring on record any document or court order to show that the accused promised her the maintenance of Rs 45,000/- for his grandson.
54. In addition to this, it would be apposite to remind ourselves that the accused, in his defence has argued that the cheque was not handed over to the complainant. In his statement u/s 313 CrPC, he stated that only when he received a message from his bank that an amount of Rs.45,000/- was debited from his account, then he contacted his bank and told the bank he had not issued any such cheque. Any reasonable man would do as what accused did and direct his bank to stop the payment or reverse the entry.
55. Further, his explanation in the said statement was that he did not file a police complaint regarding the misuse of the cheque, as the complainant is his daughter-in-law and was skeptical regarding the impression it would carry in society. This explanation is believable, as the same could have caused the accused social embarrassment.
SONAM Digitally signed by
SONAM SINGH
SINGH Date: 2021.12.24
16:58:10 +05'30'
CC. No.397/2020
SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 29
56. Ld. counsel for the complainant relied upon the judgment of the Hon'ble Delhi High Court in Ravi Chopra vs State And Anr. 2008(2) JCC (NI) 169. However, the judgment is in respect of different facts and on the point that it does not matter if the name of the payee, date, and amount are filled up at a subsequent point of time and cannot be held applicable to the present facts of the case.
57. It is a cardinal principle of criminal jurisprudence that the complainant is to prove the guilt of the accused beyond the possibility of any reasonable doubt. It is also a settled principle that thought there may be an element of truth in the complainant's story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the complainant by legal, trustworthy and unimpeachable evidence before an accused can be convicted Conclusion
58. Therefore, in view of the aforesaid discussion, the accused has clearly raised sufficient doubt about the existence of a legally sustainable liability, which the complainant has failed to prove after the onus shifted on her, and therefore the end result, for the foregoing reasons, is that the accused Chandeshwar Singh is hereby acquitted of offence u/s 138 of the N.I.Act. Consequently, the present complaint stands dismissed. SONAM Digitally signed by SONAM SINGH SINGH Date: 2021.12.24 16:59:56 +05'30' CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 30
59. A copy of this order be placed on the official website of the District Court.
60. The judgment duly digitally signed be uploaded onto Layers App and CIS forthwith. Additionally, a copy of the same, digitally signed, be preserved in the physical record.
61. File be consigned to Record Room as per Rules upon completion and pagination after compliance of the provisions of Section 437 A Cr.P.C.
Digitally signed SONAM bySINGH SONAM Announced in the open SINGH Date: 2021.12.24 17:01:43 +05'30' court on 24.12.2021 (SONAM SINGH) MM (NI Act) DIGITAL COURT-01, SOUTH-EAST/New Delhi
Certified that this judgment contains 31 pages and each page bears my signature.
CC. No.397/2020 SHAKUN SINGH V. CHANDESHWAR SINGH Page No. 31