Delhi District Court
Sh. Naresh Kumar Gupta vs . Ms. Madhu Khanna on 28 January, 2014
IN THE COURT OF SH. ASHU GARG,
Judge, Small Cause Court - cum- Addl. Senior Civil Judge - cum-
Guardian Judge - cum - Metropolitan Magistrate (New Delhi),
Patiala House Courts, New Delhi
CC No. 2097/09
Unique Case ID No. 02401R0999232007
Date of Institution: 07.03.2007
Date of reserving judgment: 18.01.2014
Date of pronouncement: 28.01.2014
In re:
Sh. Naresh Kumar Gupta vs. Ms. Madhu Khanna
Prop. M/s. Shiv Shakti Decor Prop. M/s. Nipun International
S/o. Lt. Sh. Madan Lal Gupta, W/o. Sh. Parmod Khanna,
R/o. A-68, Chattarpur Enclave, R/o. Plot no. 102, Sector IV,
Mehrauli, New Delhi IMT, Manesar, Gurgaon,
Haryana
JUDGMENT:
1.The present is a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (NI Act) by Sh. Naresh Kumar Gupta, Proprietor of Shiv Shakti Decor. The accused Ms. Madhu Khanna is stated to be Proprietor / Authorized Signatory of the business concern named M/s. Nipun International.
CC No. 2097/09 Page 1 of 232.As per the complainant, the complainant was a contractor who worked for the accused and in discharge her legal liability, the accused issued a cheque bearing no. 158788 dated 05.01.2007 drawn on Lord Krishna Bank, Gurgaon branch for a sum of Rs. 1,00,000/-. However, when the cheque was deposited by the complainant with his banker, the same was returned with the remarks "effects not yet cleared, please present again on next working day" vide memo dated 10.01.2007. It was presented again but it again returned unpaid for the reasons "funds insufficient" vide memo dated 19.01.2007. Subsequently, a legal notice dated 24.01.2007 was sent to the accused but despite service of the same, accused failed to make payment within the statutory period of 15 days. Hence, the present complaint was filed in the court.
3.Notice of accusation under section 251 CrPC for the offence punishable under section 138 NI Act was framed against the accused on 21.05.2012, to which she pleaded not guilty and claimed trial. She disclosed her defence under section 251 CrPC and claimed that no contract was ever given to the accused by her and the same was actually given to one Mr. Vinod Kumar. It was claimed that the cheque in question was signed blank and handed over as security to the said Mr. Vinod Kumar at Gurgaon in advance for the work to be done by him. However, the work was not done by him. The accused denied receipt of legal notice dated 24.01.2007 as well as her liability to pay anything to the complainant.
CC No. 2097/09 Page 2 of 234.The complainant examined himself as the sole witness. He tendered his evidence by way of affidavit and reiterated the contents of his complainant. He proved the cheque Ex. CW-1/A, cheque returning memos Ex. CW-1/B and Ex. CW-1/C, legal demand notice Ex. CW-1/D and postal receipts Ex. CW-1/E and Ex. CW-1/F.
5.Statement of the accused under section 313 CrPC was recorded wherein she denied the averments and claimed her innocence. She reiterated that the cheque was not given to the complainant but to one Mr. Vinod Kumar to construct the factory premises. She claimed that since the construction was not completed, the bank was requested vide letter dated 10.10.2006 to stop the payment of the cheque. She chose to lead evidence in defence and examined one witness in her defence.
6.DW-1 Sh. Pramod Das Khanna, husband of the accused was examined as the only defence witness who filed his affidavit in evidence and was duly cross-examined. He claimed himself to be the Manager of M/s. Nipun International, working at plot no. 102, Sector 4, IMT, Manesar, Gurgaon and claimed that they had no office or factory at Plot no. 853, Phase -IV, Udyog Vihar, Gurgaon, Haryana. He reiterated the stand taken by the accused and deposed that the cheque was given to Mr. Vinod Kumar as security for the construction work to be done at ground floor and the first floor of the property. He further deposed that the accused had demanded the blank signed CC No. 2097/09 Page 3 of 23 cheques from the said Mr. Vinod Kumar but he informed that the cheques had been destroyed and thereafter, stop payment instructions were given to the bank by the accused.
7.It is in these circumstances, it is argued on behalf of the complainant that he has been able to prove its case against the accused. It is submitted that all the ingredients of the offence have been established on record and considering the presumptions in favour of the complainant, the accused ought to be convicted.
8.On the other hand, Ld. Defence Counsel has argued that no case is made out against the accused as there are inherent defects and infirmities in the prosecution case. It is argued that the complainant had miserably failed to establish the legal liability on the part of the accused as he has not given any proof of any work claimed to be undertaken or done by him. Ld. Defence Counsel has pointed out that no legal notice was received by the accused as the same was never sent at her actual address of Manesar, Gurgaon deliberately, despite the complainant being well aware of the same and it has been wrongly sent at an incorrect address at Plot no. 853, Phase -IV, Udyog Vihar, Gurgaon, with which the accused had nothing to do. It is argued that the complainant has ever informed as to what construction he had done, what portion he constructed, till what period, what was the incomplete work and whether any agreement was executed between them. It is argued that most of the facts deposed by the defence CC No. 2097/09 Page 4 of 23 witness in his affidavit have not been rebutted during his cross- examination and those facts are therefore deemed to be admitted.
9.I have heard the arguments advanced by both the rival sides and have carefully perused the record.
10.Before proceeding to the merits of the case, it is pertinent to note that the evidence of the defence witness was given on the affidavit by the accused, though the Hon'ble Supreme Court in Mandvi Co- operative Bank Ltd. v. Nimesh S. Thakore [1(2010) DLT (Crl.) 150 (SC)] has held that the evidence on behalf of the accused cannot be by way of affidavit. However, no such objection had been by any of the sides at the time of evidence. No such objection has been taken even during the course of the arguments. As such, the court is considering the said evidence accordingly.
11.The law with respect to offences punishable under section 138 of the Act is well settled. The law has been laid down by the Hon'ble Supreme Court of India, in the precedent titled as M/s. Kumar Exports v. M/s. Sharma Carpets [2009(2) SCC 513], wherein it has been held that:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that CC No. 2097/09 Page 5 of 23 a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the CC No. 2097/09 Page 6 of 23 complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue".
12.The Hon'ble Court had reiterated its earlier view so laid down in case titled as M. S. Narayana Menon v. State of Kerala [AIR 2006 SC 3366].
13.In the present case, the complainant discharged his initial burden by examining himself as CW-1 and by proving on record the necessary documents. As such, the presumptions of law under sections 118 and 139 of the Act come into force regarding consideration and liability. Now the burden would shift upon the accused to rebut these presumptions. This burden can be discharged CC No. 2097/09 Page 7 of 23 by the accused by raising a probable defence either by pointing out the deficiencies in the case of the complainant and/or by leading evidence in defence.
14.To begin with, it is seen that the accused has not disputed the factum of the cheque in question bearing her signatures or having been issued from her bank account. It is not the defence of the accused that the signatures on the cheque did not belong to her or that the same were forged or that the bank account in question did not belong to her or that the cheque pertained to a different bank account.
15.The accused has then not disputed the factum of dishonour of the cheque in question, though she has disputed the reason of said dishonour. The complainant has relied upon the cheque returning memo dated 19.10.2007 wherein the cheque was returned unpaid with the reason "funds insufficient". Though such a memo is not a conclusive proof of reason of dishonour, yet, the court has no reason to dispute the reason mentioned therein by the bank officials in the ordinary course of their business. The complainant has discharged his initial burden by proving on record this cheque returning memo, and now it is upon the accused to rebut the said fact by putting forth her defence. However, in the present case, the accused has never questioned the genuineness of the cheque returning memo Ex. CW-1/C or the correctness of the reason mentioned therein. It is nowhere the defence of the accused that the said cheque returning CC No. 2097/09 Page 8 of 23 memo is a forged document or the reason of dishonour therein was incorrectly mentioned by the bank or that the funds in her bank account were sufficient on that day to honour the cheque in question. There is no allegation against any bank official about the incorrect preparation of the memo. No bank record has been summoned in the court by the accused to show that the funds in her bank account were not insufficient on the relevant date when the cheque was presented. As such, it can be said that the court has to give due weightage to the bank records.
16.The accused has however claimed that she had given stop payment instructions to her bank vide letter dated 10.10.2006, Ex. DW-1/12. (There are three connected cases between the same parties and the original letter has been placed in one of the matters).
17. In this regard, it is to be noted that as far as letter Ex. DW-1/12 is concerned, there is nothing on record to show that this letter was ever 'served' upon the bank of the accused. Though this letter Ex. DW-1/12 bears the stamp of Lord Krishna Bank, Gurgaon branch, yet the authenticity of the said stamp has never been proved on record by summoning any witness of the bank. Just on the basis of this document, the court cannot conclude that this document was ever served upon or delivered to the concerned bank, when the acknowledgement of receipt thereof can be proved only by the concerned bank witness. This is particularly in view of the position CC No. 2097/09 Page 9 of 23 that there is no date of receipt mentioned by the bank on the said letter and the identity of the recipient is also not known. It cannot be ascertained as to who had received this letter, whether he was authorised to receive the letter, on what date it was received and how the returning memo does not mention this reason despite receipt of this letter. The accused could have easily summoned the bank witnesses and record to show any such letter in their possession, but no such attempt was made, for which an adverse inference has to be drawn against the accused. As such, this letter cannot be read in against the complainant and it cannot be held sufficient to question the genuineness of the cheque returning memo Ex. CW-1/C.
18.There is no witness of the bank who might depose that the bank had actually received this letter prior to the presentation of the cheque in question, on the basis of which payment might or might not have been stopped. No bank witness has been examined who could explain why the reason of dishonour was insufficiency of funds despite stop payment instructions of the account holder. If the said letter had been received by the bank prior to the presentation of the cheque in question, the reasons of dishonour would have ordinarily been "payment stopped by the drawer" instead of, or in addition to, the reasons "funds insufficient". But the fact that no such endorsement is there on the cheque returning memo and further that the receipt of any such letter by the bank has not been proved on record, that would go on to show that the complainant has been able to CC No. 2097/09 Page 10 of 23 establish that the cheque was in fact returned due to insufficiency of funds.
19.Moving ahead, the accused had denied the receipt of the legal notice dated 24.01.2007, Ex. CW-1/D. Record shows that the said notice was sent to the accused at Plot no. 853, Phase -V, Udyog Vihar, Gurgaon. The RC and UPC receipts Ex. CW-1/E and Ex. CW-1/F have been proved on record at this address. In this regard, Ld. Defence Counsel has argued that the accused had no relation whatsoever with respect to this property at Udyog Vihar as she never worked or resided at this address. According to the accused, her correct address was that of plot no. 102, Sector 4, IMT, Manesar, Gurgaon. Ld. Defence Counsel has drawn the attention of the court towards the fact that the court summons were initially sent at the Udyog Vihar address where they remained unserved, subsequent to which the complainant furnished the fresh address of the accused on record. The said fresh address is stated to be the actual current address at plot no.102, Sector 4, IMT, Manesar, Gurgaon at which the service was affected. It is thus argued that the complainant deliberately chose not to send the legal notice at the correct address with ulterior motive, despite the fact that he was well aware of the address of the accused even at that time.
20.In this regard, it is to be seen that the court summons sent to the accused at Udyog Vihar address returned unserved with the report CC No. 2097/09 Page 11 of 23 "company found locked since long", "left", and "the company has left the given address". It would therefore be seen the processes stood unserved through Process Server as well as by post with the report that such person/company had left the address, and not that no such person or business concern ever resided / worked at this address. This would show that at some point of time, the accused resided at this address or her business concern Nipun International had operated form this address. The said address cannot be said to be incorrect. There is nothing to show that any other person resided or worked from this address. No person was found who could say that no such person was possessing the said premises. Rather to the reports consistently show that the said business concern had left the said address.
21.The accused has not established on record as to who was the owner or possessor of the Udyog Vihar address at the relevant time, if it was not her or her business concern. Once the complainant has discharged his initial burden by deposing on oath that the legal notice was sent to the accused, the burden would shift upon the accused to rebut the said deposition by leading evidence that she had no concern with the said address. No attempt was made by the accused to summon any record whatsoever that the owner or possessor of the Udyog Vihar address was some other person at the relevant time.
22.The accused has also not specifically disclosed as to where she was staying/residing at the relevant time, that is, when the construction CC No. 2097/09 Page 12 of 23 work was being done, if not at Udyog Vihar address. Though the DW-1 in his affidavit deposed that M/s. Nipun International had no office of factory at this address, but the affidavit is totally silent as to the place of residence of the accused. The accused has not placed on record any document in the form of any electricity bill, telephone bill, rent receipt, tax receipt, any postal communication, etc. that could disclose her address at the relevant time. No such proof is there with respect to an address EG-3/3, Garden Estate, Gurgaon, that has been disclosed during cross-examination of CW-1, particularly when the witness expressed hos ignorance about it. Such a concealment would also go against the accused.
23.At this stage, it is noticed that even the documents relied upon by the accused go against her. According to the accused, the construction work was awarded to one Vinod Kumar for the ground and first floor at Manesar address. The photographs of the property Ex. DW-1/2 to Ex. DW-1/11 (original photographs have been placed in connected case), as placed on record by the accused to be that of the relevant period, would show that the work was never completed by the contractor. Though the said photographs have not been proved on record as per law, yet these documents can be considered as against the accused who herself has relied upon them. [If the said photographs were taken by a traditional camera, its negatives have not been placed on record and if taken by a digital camera, no certificate under section 65B of the Indian Evidence Act has been proved. As such, these photographs are neither primarily evidence nor secondary CC No. 2097/09 Page 13 of 23 evidence and are rather no evidence to be read against the complainant]. A bare perusal of these photographs would make it apparent that when the work was going on at that plot, there was no question of any person residing or working from this address. The entire plot was under construction and there is no possibility of any built up structure at the said plot. Thus, when this building was not yet constructed so as to enable the accused to reside or work from there, it is clear that the accused must be residing at some place other than this plot at Manesar. Now it is for the accused to disclose as to where she was staying when the Manesar property was being constructed. She has not lead any evidence or has disclosed where she was staying at that time as it is apparent that she was not and could not have stayed at the Manesar property that was still under construction. When she has disclosed these facts, the court is bound to rely on the evidence of the complainant given on oath. The evidence of the complainant, coupled with failure of the accused to disclose her address at the relevant time and also coupled with the reports on the courts summons, would be sufficient to infer that the accused was in fact staying / operating from Plot no. 853, Phase -IV, Udyog Vihar, Gurgaon. If the accused had shifted her address subsequently, that would not be relevant factor to be considered against the complainant. Thus, it can be said that the legal notice was sent at the correct address of the accused. Once the letter is sent at a correct address, no fault can be attributed to the complainant if the same is returned unserved on the ground that the addressee has left the address.
CC No. 2097/09 Page 14 of 2324.Once these facts are established, the final burden upon the complainant is to establish that there was legal liability on the part of the accused and the cheque in question was given in discharge of such debt or liability.
25.In this regard, the complainant merely submitted in his complaint that he was a contractor and worked for the respondent. Ld. Counsel has argued that no details whatsoever have been given as to what was the construction to be done, what work was to be constructed, till what time the work was to be done, where the work was done, to what extent the work was executed and from where the material was so purchased, whether the raw material was purchased or not, whether any written agreement was executed, etc. It is argued that no writing agreement / contract of award of work has been placed on record nor any bills of purchase of raw material or any proof of labour working there has been placed on record.
26.In this regard, it is to be considered that as per Section 118 of NI Act, there is presumption that the cheque was issued for a consideration. Thus, when the complainant has proved on record a cheque in his name of a particular amount, it is presumed that there was a debt or legal liability and the cheque was issued in discharge of the said liability. Of course, the said presumption is rebuttable. But the burden would be now upon the accused to rebut the presumption CC No. 2097/09 Page 15 of 23 by putting forth her defence to the effect that no such debt or liability existed towards the complainant.
27.As per the stand of the complainant, the contract for construction of Manesar property was given to one Mr. Vinod Kumar in the year 2004. Perusal of the suggestions given to CW-1 in his cross- examination and the deposing of DW-1 in his affidavit, would show that as per the accused, the cheque in question was given blank signed, as security, to the said Vinod Kumar and when the construction work was stopped by him, the accused also demanded the blank security cheque from the said Vinod Kumar but he informed that the cheque had been destroyed.
28.In my considered view, the defence of the accused is infected with various infirmities. The accused never brought the said Vinod Kumar in the witness box in her defence to prove her case. He was the best witness to disprove the averments of the complainant. The accused never disclosed any address of the said Vinod Kumar nor claimed anywhere that she was not having his address. Non-examination of this witness without any sufficient ground would create a dent in the defence taken by the accused.
29.It has been claimed by the accused that she had paid certain amounts through cheques and cash from time to time to the said Vinod Kumar for the construction of the property since 2004. The accused CC No. 2097/09 Page 16 of 23 has however not placed on record any receipt showing any payment ever made to Vinod Kumar in cash for the work done by him since 2004. She has not placed on record any bank record / bank statement to show that any such cheque issued in favour of the Vinod Kumar was ever encashed in his account. She could have easily proved the details of her bank account to show that cheques had been issued in favour of any person named Vinod Kumar from 2004 to 2006, as claimed by her during the cross-examination of CW-1. She could have also summoned the details of bank account of the said Vinod Kumar in which the cheques had been claimed to be encashed, to ascertain the existence and details of the said Vinod Kumar. However, no such attempt was made by the accused that lad created a missing link to prove her stand.
30.As per the stand of accused, no work was entrusted to the complainant and the Ld. Defence Counsel has vehemently argued that absence of any document or record having been filed on the part of the complainant to this effect would establish that. However, if this argument is to be accepted, then the stand of the accused is also demolished. The position holds equally good even for the accused, as no document or record whatsoever has been placed and proved on record by her to show that the contract was given to any person called Vinod Kumar. Thus, on the one hand, the accused has argued that in the absence of any such document or bill, it should be concluded that no contract was given to the complainant, but on the other hand, she herself has not produced any document or bill whatsoever to show that CC No. 2097/09 Page 17 of 23 any such work was to be executed by any Vinod Kumar. In such a manner, absence of any such written contract, any bill of purchase of raw material, any money receipt showing cash payment, any record of payment of wages to labour, etc. should also be taken against the accused. The accused has not placed on record any document / agreement / contract to show that any such contract was awarded to Vinod Kumar. There is nothing on record to establish that any such Vinod Kumar existed or was given the work or any such work was done by him. Thus, even the version of the accused has not been proved on the same ground on which the case of the complainant is sought to be disproved. When there is no such document either with the complainant or with the accused, the presumptions in favour of the complainant, on the strength of the cheque in his favour, still holds good.
31.The accused has not been able to explain how the cheque in question came into the possession of the complainant herein. As per the complainant, the said Vinod Kumar stopped the construction work in October, 2006 when she demanded her blank cheques back. However, no such demand was ever made in writing and no action was taken against Vinod Kumar for such non-returning of the cheques.
32.The stand of the accused is falsified and disproved even by her own documents. As per the defence version, the cheques were given blank signed to one Vinod Kumar. There is no averment in the affidavit of CC No. 2097/09 Page 18 of 23 DW-1 or even the cross-examination of CW-1 that the said Vinod Kumar was working under the name and style of M/s. Shiv Shakti Decor. There is no established defence that the said Vinod Kumar was the proprietor of the business concern M/s. Shiv Shakti Decor or that the complainant Naresh Kumar Gupta was not the proprietor of said business concern. The complainant has deposed on oath that he is the proprietor of M/s. Shiv Shakti Decor. The fact that he is the proprietor of the said business concern, stands verified by the fact that the bank account in which the cheque was deposited, is in the name of M/s. Shiv Shakti Decor. The accused has never sought to disprove the said fact by summoning the bank witness to claim that this account in which the cheque was presented, did not belong to M/s. Shiv Shakti Decor or that it was not being operated by the complainant herein. The accused could have called for the details of the account holder in case she had disputed this fact. If the cheque was to be misused by fraudulently filling the name of payee by the complainant, he could have filled his own name instead of the name of business concern M/s. Shiv Shakti Decor of any third person. But the fact that the cheque was in the name of M/s. Shiv Shakti Decor and was presented to the bank account of the complainant, that would show genuineness of the matter. But since the accused has chosen not to call for bank records to ascertain the owner/holder/operator of this bank account, it becomes clear that the she has not disputed the fact that the complainant is the proprietor of the said business concern namely, M/s. Shiv Shakti Decor.
CC No. 2097/09 Page 19 of 2333.Once this fact is established, the letter Ex. DW-1/12 relied upon by the accused becomes all all the more important. Though there is no proof that any such letter was received by the Lord Krishna Bank, the court can still consider this letter as against the accused as she herself has relied upon the same.
34.As per this letter Ex. DW-1/12, stop payment instructions were given to her bank on 10.10.2006, with respect to the three cheques bearing no. 158788 (cheque in question), 158789 , 158790 worth Rs. 1,00,000/-, Rs. 50,000/- and Rs. 50,000/- respectively, all dated 05.01.2007, and all issued in favour of M/s. Shiv Shakti Decor. Thus, as on 10.10.2006, when the letter Ex. DW-1/12 is claimed to be sent to the bank, the accused was well aware of the fact that the said three cheques had been issued in favour of M/s. Shiv Shakti Decor, that they all were dated 05.01.2007 and also that they were for Rs. 1,00,000/-, Rs. 50,000/- and Rs. 50,000/-. Once this fact is claimed by the accused, it does not lie in her mouth to claim that the said cheques were given 'blank'. Had the cheques were given blank, there was no reason how the accused would become aware of the name of the payee, the amount of individual cheques and the dates mentioned thereupon when the letter dated 10.10.2006 was issued.
35.The mere fact that the contents of the cheque are in different handwriting or in different ink as compared to the signatures on the cheque, that would be inconsequential. There is no requirement in law CC No. 2097/09 Page 20 of 23 and procedure that the contents of the cheque should be in the same ink or handwriting as that of the signatures thereupon.
36.Even if it is assumed that the cheque had been misused by the said Vinod Kumar by mentioning the name of M/s. Shiv Shakti Decor, it does not appeal to senses that any person would not taken any action for such a misusing of his or her cheques in such a manner. If the stand of the accused was to be believed, she became aware of the fact that the cheques had filled by Vinod Kumar in the name of M/s. Shiv Shakti Decor, on 10.10.2006, payable on 05.01.2007. However, strangely, no action was taken against the said Vinod Kumar for such an act and not even a demand was made in writing from him. No notice was ever sent to him for this. Such a situation is not probable. The said omission on the part of the accused would also make her defence weak and would go in favour of the complainant.
37.The court also does not find force in the contentions that the evidence of the complainant CW-1 is doubtful as he is not aware where he signed his affidavit, what is written in affidavit (as it is submitted that the CW-1 does not understand English), where he signed the same, whether it was attested, etc. It is common knowledge that such work is done by the counsel for the parties at their instructions and merely because the witness is not able to reply to such questions after lapse of considerable period, that would not make the complaint or affidavit false or unreliable. The court has to go through CC No. 2097/09 Page 21 of 23 the evidence as a whole. There is no infirmity in the case from this angle.
38.The precedents relied upon by the Ld. Defence Counsel S.K.Mittal v. Saree Mahal [2012 (2) DRC 384], Kulvinder Singh v. Kafeel Ahmed [2013 (1) DRC 417], Pawan Singhal v. Gauri Shankar Deora [2012 (2) DRC 368], Hari Ram Sariwala v. State of Jharkhand [2012 (2) DRC 156], Dilipbhai Chinambhai Patel v. Haji Shabbirbhai Vora [2012 (2) DRC 94], Vijay v. Laxman [2013 (1) DRC 625] also would not come to the rescue of the accused. I have gone through the said precedents. Suffice would it be to say that the said precedents lay down and reiterate a well settled law with respect to standard of proof required in such cases. But they are all in different set of facts and circumstances. The court has to appreciate the evidence as a whole in every individual case.
39.In view of the above facts and circumstances, it is very much clear that all the ingredients of offence under section 138 of the Act have been duly proved by the complainant beyond reasonable doubt. The cheque being issued and signed by the accused from her bank account and its dishonour have been proved. The service of the legal notice and non-payment of amount within 15 days thereof are also established.
CC No. 2097/09 Page 22 of 2340.The accused has failed to establish any probable defence so as to rebut the presumptions in favour of the complainant. Her stand of the cheque being given as security to another person has not been proved. The presumptions with respect to liability and consideration have not been rebutted by the accused. The court has to believe the version of the complainant that the cheque was issued towards discharge of a debt or legal liability. The same got dishonoured and the accused failed to make the payment within 15 days of service of legal notice in writing. As such, the complainant has proved his case against the accused.
41.For the forgoing reasons, the accused is hereby held guilty and is convicted for the offence punishable under section 138 of the Act.
42.Matter be now listed for arguments on sentence.
Announced in the open court this 28th day of January2014 ASHU GARG JSCC/ASCJ/GJ/MM (New Delhi), PHC CC No. 2097/09 Page 23 of 23