Delhi District Court
Satender Kumar Singh vs Nirmal Dagar on 13 February, 2024
IN THE COURT OF MS. AAKANKSHA, METROPOLITAN
MAGISTRATE, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW
DELHI
Ct. Case No. 12134/2017
CNR No. DLSW02-016316-2017
Satender Kumar Singh .........Complainant
Through: Mr. Anil Kumar, Advocate
Versus
Nirmal Dagar ..........Accused
Through: Mr. Dinesh Dahiya, Advocate
(1) Name of the Sh. Satender Kumar Singh,
complainant
S/o Sh. Jai Bhagwan Singh,
R/o RZ-68, B-Block, Gopal
Nagar, Near Yadav Bhawan,
Najafgarh, New Delhi-
110043.
(2) Name of the accused Smt Nirmal Dagar,
W/o Sh. Sunil Dagar,
R/o Village and Post office
Bijwas, New Delhi.
(3) Offence complained of Section 138 Negotiable
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or proved Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of 27.06.2017
case
(6) Date of conclusion of 03.02.2024
arguments
(7) Date of Final Order 13.02.2024
(8) Final Order CONVICTION
JUDGMENT
1. The complainant Satender Kumar Singh has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Nirmal Dagar, on 24.06.2017.
2. The factual matrix as can be culled out from the complaint is that complainant having good friendly relations with accused for the last several years, advanced friendly loan of Rs.5,00,000/- to accused on her request in October, 2016 for a period of six months and an affidavit/general agreement and receipt to this effect was executed on 07.10.2016, again upon request of accused, complainant advanced friendly loan of Rs.9,00,000/- to accused in January, 2017 and an affidavit/declaration and receipt was executed on 23.01.2017.
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2024.02.13 15:23:37 +0530 Accused promised to return the entire loan amount of Rs.14,00,000/- on or before 06.04.2017. After expiry of the agreed period, accused issued cheque in question bearing no. 892928 dated 20.04.2017 for a sum of Rs.14,00,000/- drawn on Punjab National Bank, Bijwasan, New Delhi with assurance of its encashment upon presentation. However, to the complainant's dismay the said cheque was returned unpaid, when it was presented for encashment, with remarks "Funds Insufficient"
vide return memo dated 29.04.2017. The complainant then issued a legal notice dated 17.05.2017 calling upon the accused to pay the cheque amount within 15 days from the receipt thereof, the same was duly served upon the accused but accused failed to pay the amount due 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 cheque 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) Affidavit/Gen. Agreement, which is Ex.CW1/1.
(b) Affidavit/Declaration, which is Ex.CW1/2.
(c) Original cheque bearing no.892928 dated 20.04.2017 for an amount of Rs.14,00,000/- drawn on Punjab National Bank, which is Ex. CW-1/3.
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(d) Original cheque return memo dated 29.04.2017, which is Ex. CW1/4.
(e) Office copy of legal notice dated 17.05.2017, which is Ex. CW-1/5.
(f) Postal receipt, which is Ex. CW1/6.
(g) Tracking report, which is Ex. CW-1/7.
Complainant closed his pre-summoning evidence on 27.06.2017.
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 27.06.2017. Accused entered her first appearance, through her counsel, on date fixed i.e. 31.08.2017.
5. Notice u/s 251 Cr.P.C. was framed against accused on 31.01.2018 stating out to her the substance of accusation, to which she pleaded not guilty and claimed trial. Her 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 she did not avail any such loan from complainant, her husband had availed loan from complainant for which she gave 2-3 blank signed cheques to complainant, cheque in issue bears her signature but the remaining details were not filled by her, she did not receive legal notice, the said loan was repaid by her CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally Page no.4/39 signed by AAKANKSHA AAKANKSHA Date:
2024.02.13 15:23:50 +0530 husband but the cheques were not returned to them and have been misused by complainant.
6. Accused was granted right to cross-examine the complainant on an application u/s 145(2) NI Act vide order dated 06.04.2018. The complainant was examined as CW-1 thereby adopting his pre-summoning evidence as post-summoning evidence and was cross-examined and discharged. Complainant also examined bank witnesses from PNB Bank as CW2 and CW3 and Sunny Sangwan as CW4. They were duly cross examined and discharged. Complainant evidence was closed on 21.10.2019.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 06.01.2020 wherein all the incriminating evidence was put to the accused and she was granted an opportunity to explain the circumstances appearing against her at trial. While explaining the circumstances appearing in evidence against her, accused stated without oath that she did not issue the cheque in question, she did not receive legal notice, she signed on the documents Ex.CW1/1 and Ex.CW1/2 but the same were blank, the cheque in issue bears her signature but the remaining particulars were not filled by her, she does not know complainant, the cheque was given by her on behalf of her husband, she has no liability towards complainant. Accused preferred to lead evidence in her defence.
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8. At the stage of defence evidence, accused examined herself as DW1 relying upon two affidavits Ex.DW1/1(colly) and Ex.DW1/2(colly), certified copy of complaint filed by complainant against Sonu Sharma Ex.DW1/3 (colly), complaint filed by complainant against Manjeet Ahlawat Ex.DW1/4 (colly), her passport entry Ex.DW1/5 (colly) (OSR) and copy of her aadhar card and election ID Ex.DW1/6 (colly) (OSR). Accused also examined bank witness from PNB bank as DW2. Both the witnesses were duly cross examined and discharged. Vide separate statement of Ld. counsel for accused, Defence Evidence stood closed on 24.02.2023.
9. At the stage of final arguments, Ld. counsel for complainant filed written submissions to the effect that accused has admitted her signature on the cheque in question, the cheque relates to the account of accused and thus the initial presumption u/s 139 NI Act is raised in favour of complainant as held in M/s. Kalamani Text & Anr. v. P. Balasubramaian LL2021 SC75, accused also admitted her signature on Ex.CW1/1 and Ex.CW1/2, these documents were also proved by CW4 as he was witness of the transaction and the loan was given in his presence, accused was unable to shake the credibility of CW4, from the plea of defence of accused it is clear that the complainant was well known to the accused, accused never made any complaint to the police regarding non return of the said cheque nor did she send any notice of demand of the cheque, accused relied upon her bank passbook Ex.DW1/5 which shows that there were CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.6/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:24:06 +0530 transactions between the complainant and accused and the accused also cross examined CW1 suggesting that the cheque was given to complainant as security, summons were received by accused on the same address as mentioned in the memo of parties, even Ex.DW1/1 and Ex.DW1/2 filed by accused her address is the same as mentioned in the memo of parties and in the notice, the fact of dishonor of cheque and return memo was duly proved by DW2 and thus the complainant was able to successfully prove his case and prayed to convict the accused.
10. Per contra, Ld. counsel for accused also filed his written submissions stating that husband of accused was running a boutique on behalf of accused and also maintained her bank account, accused kept some blank signed cheques and blank signed documents in the boutique for convenience of her husband, her husband took loan of Rs.1,00,000/- from complainant on 03.09.2016 and Rs.2,00,000/- on 10.09.2016 without the knowledge of accused, complainant took signature of husband of accused on some documents, at that time complainant stole blank signed cheques and blank signed papers from the boutique of accused, thereafter complainant tried to black mail husband of accused demanding Rs.6,50,000/- which was opposed by accused, ultimately husband of accused settled the matter in a sum of Rs.5,00,000/- which was admitted by complainant in his cross examination, after receiving Rs.5,00,000/- complainant returned some falsely drafted documents to the husband of accused which show that accused took loan of Rs.5,00,000/-
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from complainant and husband of accused took Rs.1,50,000/- which is factually incorrect, the said fake documents are Ex.DW1/1, when accused asked for return of remaining blank signed cheques and blank signed papers complainant told that they were misplaced, complainant filed this case on the basis of those stolen cheques and misused blank signed papers, complainant also dishonored another cheque of Rs.19,00,000/- of accused which was not admitted by complainant but SMS was received by accused. He further argued that there was no relation between complainant and accused whether friendly or professionally which is proved from Ex.DW1/2, the correct address of accused is mentioned in Ex.DW1/5 and Ex.DW1/6 which is different from the legal notice, it is not possible to trace out anyone in Bijwasan without landmark due to its population, thus legal notice was not served upon accused, complainant has failed to prove the source of alleged loan and also failed to disclose the same in his ITR, thus complainant has failed to prove legally enforceable debt, his bank account statement also shows no credit entry from any business, the cheque in question has been filled by two persons in two handwritings and there is alteration in the amount written in words, it was admitted by CW2 that the said alteration was not pointed out in the return memo and the cheque should be returned if there is any alteration and therefore the proceedings are void u/s 87 of NI Act, CW2 has also admitted that the cheque has not come for clearing purpose and it was only presented at the counter and was kept in the list of unused cheque, there was also no entry of cheque dishonor in the account of complainant or accused and therefore section 138 CC No. 12134/2017 Digitally signed by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA Page no.8/39 AAKANKSHA Date:
2024.02.13 15:24:18 +0530 NI Act does not apply, CW2 and DW2 have violated the guidelines of RBI Mark DW2/A and DW2/B and they issued return memo without keeping the cheque in clearing process and without maintaining the records gave privilege to complainant by exempting the dishonor entry in the account and exempting the complainant from charges of dishonor of cheque, in absence of any entry in the bank account it is evident that the cheque in issue was never dishonored, complainant has failed to prove return memo and the bank official has also admitted that they are not maintaining the records of return memo and thus the present case is not maintainable, complainant disclosed giving of another loan of Rs.5,00,000/- to accused being repaid within a month and then the complainant allegedly gave another loan of Rs.5,00,000/-, but Ex.CW1/1 which shows that the date of second loan as 07.10.2016 but the date of repayment of loan in Ex.DW1/1 is 14.10.2016 which proves that complainant did a fraud, complainant admitted that all his house expenses were borne by his father and he failed to prove the source of loan of Rs.14,00,000/-, due to demonetization it is impossible to arrange Rs.9,00,000/- in cash in January, 2017, complainant is a money lender who first denied giving loan to anyone else and later admitted Ex.DW1/3 and Ex.DW1/4 vide order dated 14.03.2022 in which complainant has given loan to other people, the money involved in Ex.CW1/1 and Ex.CW1/2 can only be recovered by specific performance case and not u/s 138 NI Act, handwriting of cheque in question is same with the handwriting in Ex.DW1/4 which proves the guilt of complainant, complainant also admitted Ex.DW1/4 in order dated 14.03.2022, complainant failed to file CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by AAKANKSHA Page no.9/39 AAKANKSHA Date:
2024.02.13 15:24:24 +0530 any agreement/sale purchase document from where he obtained the money to be given to accused and prayed to acquit the accused. In favour of his submissions, Ld. counsel for accused relied upon the cases of Veera Exports v. T.Kalavathy decided on 02.11.2001 by Hon'ble Supreme Court, K. Subramani v. K. Damodara Naidu2015(1) DCR5, Satish Kumar v. State NCT of Delhi Crl. L.P 95/2006 decided on 01.08.2013, G.Pankajakshi Amma & Ors. v. Mathai Mathew (d) through LRs (2004) 12 SCC 83, Yogesh Upadhyay & Anr. v. Atlanta Ltd. (2023) 02 SC CK0044, Avneet Bedi v. State of West Bengal & Anr. 2022 SCC OnLine Cal 3985, M/s. Anil Agro Industries & Anr. v. M/s. Bhoday Steel Rolling Mills dated 16.01.2023 passed by Hon'ble High Court of Punjab and Haryana, B.V.Sashaiah v. State of Telangana & Anr. 2023 LiveLaw (SC) 75 and M. Jaishankar & Ors. v. M/s. Sree Gokulam Chits and Finance Corporation Private Ltd. & Ors. (2020) 12 MAD CK0014.
11. 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.
12. 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.
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v. M/s 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;
(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, mean- ing thereby that only if all the aforementioned ingredients are sat-
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isfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
13. 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 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 re- spondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
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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-exis- tence 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 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 com- plainant 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 CC No. 12134/2017 Digitally signed Satender Kumar Singh vs Nirmal Dagar by Page no.13/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:24:46 +0530 said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its exis- tence so probable that a prudent man ought, under the cir- cumstances of the particular case, to act upon the supposi- tion 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 con- sideration 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.
14. 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.
15.1. 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 CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally signed by Page no.14/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:24:52 +0530 for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheque in question on her account maintained with a bank for discharge of any debt or other liability. In the instant case, accused has admitted her signature on the cheque in question in her statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheque in question has also been drawn on the account maintained by her with Punjab National Bank. 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.
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(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.
(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."
15.2. In the instant case, the accused having admitted her signature on the cheque in question and the said cheque being drawn on her bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheque in question was issued by her in discharge of, whole or part of, legally enforceable debt or liability.
15.3. 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 CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally signed by Page no.16/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:25:02 +0530 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).
15.4. The accused has chosen to do so by cross-examining the complainant. During cross-examination, CW-1 deposed, in brief, that he has agency of Bikano Namkeen when he gave loan to accused and from the same his income was around Rs.20,000/-
to Rs.25,000/- per month, he was unable to pay 6-7 installments of car loan, his household expenses are borne by his father, he also has annual income of Rs.1.5 Lakhs from catering business, he sold a plot to Sanjay Dayal for Rs.16.5 Lakhs out of which he gave the present loan, he did not give loan to anyone else in last five years, he is not a money lender, he did not disclose the loan in his ITR, he knows accused through her husband Sunil Dagar, he also gave another loan of Rs.5,00,000/- to accused in October 2016 which was repaid by accused in a month, accused gave one cheque each at the time of loan of Rs.5,00,000/- and Rs.9,00,000/-, in the meanwhile accused also gave a cheque of Rs.50,000/- which was not presented at request of accused, the cheque in question was given in January, 2017 and he returned the cheque given in October 2016 when accused made the payment of another loan of Rs.5,00,000/-, the chain of documents regarding previous transactions of property purchased by him is CC No. 12134/2017 Digitally signed by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA Page no.17/39 AAKANKSHA Date:
2024.02.13 15:25:07 +0530 Ex.CW1/D1 (colly), he does not have any document regarding sale of the said property as the same is in possession of buyer, loan of Rs.5,00,000/- was given to accused for payment regarding purchase of a plot at the shop of document writer in Najafgarh and loan of Rs.9,00,000/- was given for treatment of her husband at her house, the cheque no. in Ex.CW1/1 is blank as the cheque was given by accused later in the evening, he does not remember who purchased the stamp paper, it was not notorised as they did not have their photographs, there was only one witness to Ex.CW1/1, both accused and her husband were present at the time of its execution, Ex.CW1/2 was executed at Najafgarh and he purchased a stamp paper, it was signed at the house of accused in presence of her husband and there was one witness, a person from notary also accompanied then to the house of accused, he does not have any document regarding return of cheque to accused, he gave loan to 2-3 other persons in cash in last five years and earlier when he said that he did not give loan, he meant that there was no case pertaining to those loans pending since last five years.
15.5. Complainant also examined bank witness from PNB Mr. Satya Kumar Gosain as CW2 who placed on record Ex.CW2/A to contend that as per bank record, cheque in question is unused which means that the cheque is not debited in the account of account holder, the cheque might have been presented at the counter and may have been returned due to insufficient balance. During cross examination, CW2 deposed that there is CC No. 12134/2017 Digitally signed Satender Kumar Singh vs Nirmal Dagar by Page no.18/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:25:12 +0530 alteration in the word 'Lakh' in the cheque which was not pointed out in the return memo and the cheque should be returned if there is any alteration, the cheque has not come for clearing purpose and it was only presented on the counter, it is account payee cheque and return memo is already Ex.CW1/4.
15.6. Complainant also examined bank witness from PNB Ms. Meena Singh as CW3 who placed on record bank account statement of accused from 01.04.2017 till 31.12.2017 Ex.CW3/A. During cross examination, CW3 deposed that there is no cheque dishonor entry in the bank account of accused but denied the suggestion that the cheque was never presented before the bank.
15.7. Complainant also examined Mr. Sunny Sangwan as CW4 who deposed that complainant gave Rs.5,00,000/- to accused in August or September 2016 and Rs.9,00,000/- in January 2017 and he was a witness who give affidavit and receipt Ex.CW1/1 and Ex.CW1/2, complainant returned a cheque of Rs.5,00,000/- to accused and thereafter accused issued cheque of Rs.14,00,000/- at her residence. During cross examination, CW4 deposed, in brief, that he knows complainant since 2007 as they were study in the same college, he does not have any family relation with complainant and complainant is not a witness in any of his court cases, he does not have any knowledge of source of cash with complainant, Rs.5,00,000/- were not returned to Digitally CC No. 12134/2017 signed by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA Page no.19/39 AAKANKSHA Date:
2024.02.13 15:25:17 +0530 complainant in his presence, Rs.5,00,000/- was given by complainant at the shop of public notary near Chhawla Bus Stand Najafgarh, complainant called him for signing the affidavit and receipt, it was not notarised as accused did not have her photograph at that time, there were some sale purchase transaction between complainant and husband of accused, Rs.9,00,000/- was given by complainant at residence of accused in Bijwasan, at that time accused and her husband were also present, her husband needed money for investment, the documents were notarised at the residence of accused by notary public.
15.8. Accused examined herself as DW-1 and deposed in brief, that she does not know the complainant and never had any dealing with him, her husband may have had transactions with complainant, her husband used to manage her bank account but he is no more, she only knows that her husband told her that he took Rs.3,00,000/- from complainant and returned Rs.5,00,000/-, her papers and cheques used to stay in her boutique and her husband used to take care of all her financial dealings. During cross-examination, DW-1 deposed, in brief, that she does not know complainant and all transactions as reflected in Ex.DW1/5 were done by her husband, her husband expired on 12.11.2017, she never signed on Ex.DW1/1 but the signature appears to be hers, she only signed on blank papers at behest of her husband, Ex.DW1/1 and Ex.DW1/2 are forged and fabricated documents made by complainant, complainant took Rs.5,00,000/- from her CC No. 12134/2017 Digitally signed by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA Page no.20/39 AAKANKSHA Date:
2024.02.13 15:25:22 +0530 husband and gave Ex.DW1/1 and Ex.DW1/2, she never signed on Ex.CW1/1 and Ex.CW1/2 but the signatures appears to be hers, she is not aware of any police complaint filed by her or her husband with respect to Ex.DW1/1, Ex.DW1/2, Ex.CW1/1 or Ex.CW1/2, she used to sign on cheques in advance as her cheque book remained with her husband, she is not aware whether her husband had given any of her other blank cheque to other person.
15.9. Accused also examined bank witness from PNB Sunil Bharti as DW-2 who placed on record bank account statement of both complainant and accused Ex. DW-2/1 and Ex.
DW-2/2. He was cross-examined, with permission, by defence itself wherein he deposed that there is no cheque dishonor entry in either of the statements and no charge for dishonor of cheque but bank has right to waive off the charge, he was also confronted with RBI circulars but maintained his stand that levying of charge depends on bank, bank has not kept record of return memos issued, return memo Ex. CW-1/4 was verified for reason funds insufficient and same has been verified from statement of account and not bank records, they do not maintain record of dishonor of cheques, cheque in issue is a transfer cheque and they are not maintaining records of transfer cheque, but the cheque was presented for clearing before the bank, all cheques need not be cleared though clearing house and only other bank cheques need to be. Further in cross-examination by complainant, the witness deposed that cheque in issue was in fact presented for passing/crediting the amount in the account of CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by AAKANKSHA Page no.21/39 AAKANKSHA Date:
2024.02.13 15:25:27 +0530 beneficiary, it was dishonored due to insufficient funds, due to reason of same bank and entry sometimes not be shown in statement of accounts and cheque in question and return memo have been issued by his bank.
15.10. It is undisputed fact that the cheque in issue bears the signature of accused. Accused has also admitted issuing the cheque in question to complainant in her plea of defence and statement u/s 313 Cr.P.C., but has pleaded that it was issued on behalf of her husband. Complainant has alleged giving of loan of Rs. 5,00,000/- and Rs. 9,00,000/- to accused and issuance of cheque in question by accused in discharge of her liability.
Whereas accused has taken defence that she does not know complainant, her boutique as well as her bank account was maintained by her late husband, she used to keep blank signed papers and cheques at her boutique which have been misused by complainant, her husband borrowed loan from complainant and also repaid the same but complainant never returned her documents and cheques.
15.11. The accused commenced the cross-examination of complainant challenging his financial capacity to extend Rs. 5,00,000/- and Rs. 9,00,000/- to accused, while at the same time herself admitting that her husband used to borrow money from complainant and even told her that he borrowed Rs. 3,00,000/- from complainant and returned earlier borrowed sum of Rs.
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5,00,000/- to complainant. Thus, accused has herself impeached her defence of challenging the financial capability of complainant. Even otherwise, in case the accused is said to have raised a question over the source of funds with complainant, as a proof of loan complainant has relied upon two affidavits/general agreements Ex. CW-1/1 and Ex. CW-1/2. Accused has also admitted her signature on both the said documents, in her statement recorded u/s 313 Cr.P.C. and also while cross- examining CW-1 but took defence that these documents were blank when they were signed. But again, no evidence has been adduced by accused to prove her allegation that she only signed a blank document. A person voluntarily signing a blank document cannot take shelter of such plea to absolve oneself from the liability ensuing on it, unless he/she can set up a defence proving that such document was not handed over to the complainant or complainant was not entitled to the possession thereof. However, it is not the plea of accused during the entire trial that she did not handover the signed document to complainant. In fact, the suggestion put by accused to CW-1 was that these documents and cheque were related to previous loan taken by husband of accused which complainant did not return. To the contrary, accused set up a totally new defence in her written submissions, by pleading that the blank signed documents and cheque were stolen by complainant from the boutique of accused. No such plea was ever raised by accused during the trial and is also contradictory to the plea of accused. Accused also did not take any steps against handing over of or misuse of or non-return of blank signed documents by complainant till date. DW-1 pleaded CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.23/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:25:38 +0530 ignorance to the question put to her if she or her husband ever filed any complaint qua documents Ex. CW-1/1 and Ex. CW-1/2. She also deposed that she does not know if her husband has also given any of her other blank signed cheques to any other person. She further pleaded that her husband has passed away. Thus, accused has been unable to prove her plea that she signed only on blank paper which was later converted into Ex. CW-1/1 and Ex. CW-1/2. The facts of the case referred to be accused i.e. K. Subramani v. K. Damodara Naidu2015(1) DCR5 were different when Hon'ble Supreme Court found that the complainant was unable to prove his financial capability, as complainant and accused both were governed by Government Servants Conduct Rules and nothing could be shown that the prescribed mode of lending was followed by complainant, also complainant had himself taken a loan of approximately the same amount which he alleged to have advanced to accused. However, in the present case neither party has been alleged to be a government servant or bound by certain rules prescribed by any authority to advance money to any person. The other cases referred to by accused regarding the need to prove financial capacity by complainant also do not render any assistance to the defence of accused in the present case in as much as lending of loan is successfully proved by documentary evidence supported by oral testimony of the witness to the transaction.
15.12. It has been held in the case of Uttam Rai v.
Devinder Singh Hudan (2019)10 SCC 287 that Trial Court CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by AAKANKSHA Page no.24/39 AAKANKSHA Date:
2024.02.13 15:25:43 +0530 cannot proceed as if the complainant is required to prove the debt owed to him. Statutory presumption has to be raised in his favour which can only be rebutted by either showing that consideration and debt did not exist or that under the particular circumstances of the case non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration or debt existed. But in order to further prove his case, complainant also examined the attesting witness to agreements/affidavits Ex. CW- 1/1 and Ex. CW-1/2 i.e. Sunny Sangwan. CW-4/Sunny Sangwan testified that agreement Ex. CW-1/1 was prepared at the office of notary. CW-4 further deposed that agreement Ex. CW-1/2 was prepared at the residence of accused. The testimony of complainant/CW-1 regarding the place of execution of both the agreements stand corroborated by the testimony of CW-4. CW-4 was duly cross-examined but nothing could be brought on record by accused to shake his credibility. Thus, the oral testimonies of CW-1 and CW-4 in light of documentary evidence of Ex. CW-1/1 and Ex. CW-1/2 duly prove the advancement of loan of total sum of Rs. 14,00,000/- to accused in two separate instances. Now the burden to disprove the same was upon accused. But accused has failed to examine the notary or lead any other evidence to prove to the contrary. Since signatures of accused on the documentary proof of advancement of loan is admitted to be that of accused and accused has also admitted in her plea of defence that her husband borrowed loan from complainant and she gave 2-3 blank signed cheques, her challenge to the financial capacity of complainant to lend loan becomes futile.
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15.13. Another defence taken by accused has been that cheque in question is void u/s 87 NI Act. Ld. counsel for accused has argued that the cheque has been filled by two persons in two handwritings and there is alteration in the amount written in words, it was admitted by CW2 that the said alteration was not pointed out in the return memo and the cheque should be returned if there is any alteration and therefore the proceedings are void u/s 87 of NI Act. From the testimony of bank witness from PNB Bank CW-2, it reveals that upon being cross-examined the witness has admitted that there was alteration in the word 'lakh' in the cheque and further deposed that "It is correct that if there is any alteration on the cheque it should be returned." Thus, it was merely a suggestion put to the witness and the witness never deposed that the cheque in question was actually returned for the reason of alteration. Also, Section 87 NI Act renders a negotiable instrument void only upon it being materially altered.
What is material alteration has not been defined in the Act. But Section 87 has been made subject to Section 20, 49, 86 and 125 NI Act. These provisions help us to understand what are not considered "material alteration" for the purpose of Section 87. [Ravi Chopra v. State & Anr. 2008 SCC OnLine Del 351] It is not any and every alteration that avoids the instrument. To have that effect the alteration must be in material particular. It can be brought about by change in date or time of drawing or of the place of payment or by change in the sum payable etc. It is true that in two cases alterations, though material, do not vitiate the instruments firstly, when the alteration is made before the promissory note is executed, and secondly, if the alteration made CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.26/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:25:52 +0530 was merely to correct a mistake, or to make it what it was originally intended to be. Section 87 itself states that the alteration can be made with the consent of the parties or to carry out the common intention of the original parties [ M/s. Anil Agro Industries & Anr. v. M/s Bhoday Steel Rolling Mills dated
16.01.2023 passed by Hon'ble High Court of Punjab & Haryana]. In the case of Veera Exports v. T.Kalavathy decided on 02.11.2001 by Hon'ble Supreme Court, referred to by accused, it was held that a material alteration is a question of fact. Thus, in the opinion of this court, the correction in the spelling of the word 'lakh' in the amount payable does not amount to material alteration. Also, the fact remains that the cheque in question was dishonored for reason 'funds insufficient' and not otherwise. Thus, the defence taken by accused regarding voidability of cheque in question fails on this point.
15.14. Another defence taken by accused has been that the cheque in question being unused cheque is not covered u/s 138 NI Act. Ld. counsel for accused made submissions to the effect that CW-2 has admitted that the cheque has not come for clearing purpose and it was only presented at the counter and was kept in the list of unused cheque, there was also no entry of cheque dishonor in the account of complainant or accused and therefore section 138 NI Act does not apply, moreover CW-2 and DW-2 have violated the guidelines of RBI (Mark DW2/A and DW2/B) and they issued return memo without keeping the cheque in clearing process and without maintaining the records Digitally signed CC No. 12134/2017 by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA AAKANKSHA Page no.27/39 Date:
2024.02.13 15:25:57 +0530 and exempting the complainant from charges of dishonor of cheque and in absence of any entry in the bank account it is evident that the cheque in issue was never dishonored and that complainant has also failed to prove return memo and the bank official has also admitted that they are not maintaining the records of return memo and thus the present case is not maintainable.
15.14.1. First and foremost, the return memo has been verified to be correct by bank witness CW-2 in his cross-
examination and also by defence witness/DW-2. DW-2 also explained that they do not keep records of transfer cheque. The mere fact that the record of return memo and dishonored cheques was not kept by bank officials is no ground for accused to seek acquittal in a case u/s 138 NI Act. Accused has also been unable to challenge the return memo despite cross-examining three bank witnesses CW-2, CW-3 and DW-2. Thus, there does not appear to be any ambiguity about the authenticity of return memo.
15.14.2. Next, it is admitted fact that the cheque was drawn by accused on account maintained with PNB and it was presented by complainant also with PNB. This fact has seemed to create some confusion during the cross-examination of bank witnesses which accused has been trying to take advantage of. CW-2/Satya Kumar Gosain relied upon Ex. CW-2/A to depose that as per record of bank, the cheque in issue is unused which CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.28/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:02 +0530 means that the cheque is not debited in the account of account holder. Accused merely sought to use this testimony of CW-2 to contend that the cheque has not been presented and never dishonored and is unused cheque and thus does not fall within the realm of Section 138 NI Act as offence was never committed. However upon perusal of entire testimony of CW-2, his further deposed that "the said cheque might have been presented on counter and may have been returned due to insufficient balance"
is also relevant. Thus, CW-2 did not, by conviction, depose that the cheque in issue was never presented for clearance. He further deposed that the cheque has not come for clearing purpose and was only presented on counter. This implies that the cheque in question was, in fact presented for encashment but did not approach the clearing section.
15.14.3. Further, evidence of bank witness Meena Singh/ CW-3 reflects that the statement of account of accused does not contain any cheque dishonor entry nor any charges levied for dishonor of cheque, but the said witness also denied the suggestion that the cheque has not been even presented for encashment. Likewise, bank witness examined by accused i.e. Sunil Bharti/DW-2 also filed bank account statement of both complainant and accused (Ex. DW-2/1 and Ex. DW-2/2) which again showed no entry of dishonor of cheque or levy of charges of dishonor in either of the bank accounts of the parties. The defence witness DW-2 was also cross-examined by accused itself to prove that the bank failed to comply with the RBI circulars of CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.29/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:07 +0530 maintaining record of returned cheques and levying charges of dishonor. However, the same cannot be a ground to acquit the accused. The presentation of cheque in issue has been fortified by the cross-examination of DW-2 by complainant as also the reason for its dishonor. Further, the witness has deposed that "it is correct that due to reason of same bank and entry sometimes not be shown in the statement of accounts."
15.14.4. Thus, it is clear from the examination of all the three bank witness CW-2, CW-3 and DW-2 that the cheque in question was, in fact presented for encashment but did not approach the clearing section. But Ld. counsel for accused, while ignoring the testimony of his own witness DW-2, only sought to rely upon the testimony of CW-2 to allege that the cheque is an unused cheque and therefore Section 138 NI Act does not apply, which does not find any force. The question which now arises for consideration is whether mere presentation of cheque without it being sent to the clearance section, is sufficient compliance to invoke rigour of Section 138 NI Act? Attention may be drawn to the language of Section 138 NI Act which reads as under:
"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 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..."
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Thus, the wordings of Section 138 NI Act as reiterated hereinabove does not restrict its operation to only the cheques which have been presented and also received in the clearing section of the bank. DW-2 also deposed that all the cheques need not pass the clearing section and it is only the cheques of other banks which need to be passed through clearing section. Admittedly, the cheque has also been drawn on the bank account of accused maintained with PNB and has also been presented by complainant before PNB, as reflected from the stamp appearing on the cheque. Thus, this court finds no merit in the argument of Ld. counsel for accused that cheque in question being unused has failed to attract the rigour of Section 138 NI Act.
15.15. Further, a totally new defence was raised by accused in her written submissions. Ld. counsel for accused submitted that husband of accused was running a boutique on behalf of accused and also maintained her bank account, her husband took loan of Rs.1,00,000/- from complainant on 03.09.2016 and Rs.2,00,000/- on 10.09.2016 without the knowledge of accused, complainant took signature of husband of accused on some documents, at that time complainant stole blank signed cheques and blank signed papers from the boutique of accused, thereafter complainant tried to black mail husband of accused demanding Rs.6,50,000/- which was opposed by accused, ultimately husband of accused settled the matter in a sum of Rs.5,00,000/- which was admitted by complainant in his cross examination, after receiving Rs.5,00,000/- complainant Digitally signed CC No. 12134/2017 by Satender Kumar Singh vs Nirmal Dagar AAKANKSHA Page no.31/39 AAKANKSHA Date:
2024.02.13 15:26:17 +0530 returned some falsely drafted documents to the husband of accused which show that accused took loan of Rs.5,00,000/- from complainant and husband of accused took Rs.1,50,000/- which is factually incorrect, the said fake documents are Ex.DW1/1, when accused asked for return of remaining blank signed cheques and blank signed papers complainant told that they were misplaced, complainant filed this case on the basis of those stolen cheques and misused blank signed papers, complainant also dishonored another cheque of Rs.19,00,000/- of accused which was not admitted by complainant but SMS was received by accused.
15.16. No such SMS was placed on record or led in defence evidence. Although CW-1 in his cross-examination admitted the fact that he earlier also gave a loan of Rs. 5,00,000/- to accused which was returned by accused, but during the entire trial accused failed to connect such loan of Rs. 5,00,000/- with the earlier loan taken by husband of accused and stealing of cheques and papers by complainant and blackmailing by complainant resulting into settlement of Rs. 5,00,000/-. No plea was taken by accused in the entire trial that the cheque or signed documents kept at the boutique of accused were stolen by complainant, nor did accused even whisper of any settlement between her husband and complainant. Also, accused herself filed two agreements Ex.
DW-1/1 and Ex. DW-1/2 deposing them to be prepared by complainant and fake. She further deposed that she signed on such documents at behest of her husband. Thus, accused herself CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally signed Page no.32/39 by AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:22 +0530 admits having signed these documents and still calls them fake and herself admits that she does not have any knowledge of any action taken by her or her husband against such documents till date. Thus, accused seems to have taken advantage of her own wrong. Firstly, she signs some documents at behest of her husband and also issues cheque under her signature and then refutes her liability stating that her husband already repaid the loan but documents were not returned to her and still she or he husband fails to take any action against complainant till date. Thus, a total new defence has been raised by accused in the written submissions, which cannot be accepted without there being any suggestion or plea of accused suggesting any such incident to have ever occurred.
15.17. The plea of accused and her deposition that she does not know complainant, gets falsified from her own bank passbook Ex. DW-1/5 which shows many other transactions between her and complainant. The same has also been admitted by accused in her cross-examination though she gave an explanation that her husband used to maintain her bank account.
Mere plea of accused that her husband maintained her bank account, he only gave her signed cheques to complainant or she signed blank papers for her husband's convenience or at his behest cannot absolve accused from the liability incurred from the affidavit/agreement Ex. CW-1/1 and Ex. CW-1/2 and upon on the issuance of cheque in question duly signed by her. In fact, her deposition that her husband did all these transactions lead to her CC No. 12134/2017 Digitally Satender Kumar Singh vs Nirmal Dagar signed by Page no.33/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:27 +0530 admission that her husband was duly authorized by her to act on her behalf. To this effect, it would be appropriate to refer to the case of Anil Sachar v. Shree Nath Spinners (P) Ltd. (2011) 13 SCC 148 wherein it was held that if the cheque is given towards any liability or debt which might have been incurred even by someone else, the person who is drawer of the cheque can be made liable under section 138 NI Act. Thus, accused could be made liable also for the debt incurred by her husband if she issued her cheque in discharge of the said debt. However, in the present case complainant has proved vide agreement/affidavit Ex. CW-1/1 and Ex. CW-1/2 that it was accused herself who borrowed the loan in question.
15.18. Accused also cross-examined complainant and filed two more cases which happened to be filed by complainant against two other persons under Section 138 NI Act. But the same does not prove anything against the complainant in view of admission of signature of accused on the loan document and issuance of cheque in question under her signature. Further, the plea of accused that her husband borrowed loan and also repaid the same, has not been proved by accused. No proof of any such repayment has been placed on record.
15.19. The burden was upon accused to prove that no such loan was borrowed and the cheque was never issued in discharge of legal debt. However, from above discussion it is clear that CC No. 12134/2017 Digitally signed Satender Kumar Singh vs Nirmal Dagar by Page no.34/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:35 +0530 accused has failed to rebut the legal presumption as contradictory pleas have been raised by accused during trial and at the stage of final arguments, the plea taken by accused in written submissions have not been confronted with the complainant during trial, accused has unable to explain under what circumstances she signed on the loan agreements and the cheque in question, accused has been unable to discredit the testimony of witness to the loan i.e. CW-4, whereas complainant has led clinching evidence by way of Ex. CW-1/1, Ex. CW-1/2 and testimony of himself and CW-4 to prove that loan in question was borrowed by accused and cheque was issued in discharge of such liability.
15.20. Thus, accused has been unable to rebut the presumption of law and raise a probable defence that the cheque in question was not issued by her to complainant in discharge of her liability.
The first legal requirement is, thus, proved in favour of complainant and against the accused.
16. 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 cheque in question Ex. CW-1/3 is dated 20.04.2017. The cheque returning memo Ex. CW-1/4 is dated 29.04.2017, which proves that the cheque in question was CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally signed by Page no.35/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:40 +0530 presented within the period of its validity. Although defence has cross-examined CW-1 to suggest that return memo is false and fabricated and bank officials are also involved and manipulation of documents, but defence has failed to prove such defence. In fact, defence witness DW-2 as well as CW-2 and CW-3 have verified the correctness of the return memo.
Thus, the second legal requirement is adjudicated in favour of complainant.
17. 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 agree- ment made with the bank."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the of- ficial mark denoting that the cheque in question has been dishon- oured. This is also a rebuttable presumption and the upon produc- tion of such bank memo, the burden shifts upon accused to dis- prove the same. In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheque in question was dishonored for the reason stated therein viz. funds insufficient, which falls within the offence u/s 138 NI Act and therefore, the burden now shifts upon the accused to re- but this presumption by establishing some reasonable justifica- tion for the same. But the accused has admitted her signature on the cheque in question and has failed to prove that the cheque CC No. 12134/2017 Satender Kumar Singh vs Nirmal Dagar Digitally signed Page no.36/39 by AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:46 +0530 was returned due to any other reason not falling under the realm of Section 138 NI Act.
Thus, the third legal requirement is adjudicated in favour of complainant.
18. 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 cheque in issue was returned dishonored on 29.04.2017. The complainant sent a legal notice dated 17.05.2017 (Ex.CW-1/5) addressed to the accused. Speed post receipt is Ex. CW-1/6. Speed post tracking report Ex. CW- 1/7 reflects delivery upon addressee on 18.05.2017. Although ac- cused has denied receiving legal notice in her statement u/s 313 Cr.P.C. and in plea of defence recorded u/s 251 Cr.P.C, and has also disputed her address stating that it is not possible to trace out anyone in Bijwasan without landmark due to its population and the correct address of accused is mentioned in Ex.DW1/5 and Ex.DW1/6, however the summons were issued upon accused on the same address as mentioned in the legal notice and accused appeared on the very day fixed upon issuance of summons and thus there is presumption u/s 27 General Clauses Act that ac- cused must have received the summons.
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18.1. 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:
"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."
18.2. 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.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
19. The fifth legal requirement is:
CC No. 12134/2017Satender Kumar Singh vs Nirmal Dagar Digitally signed by Page no.38/39 AAKANKSHA AAKANKSHA Date:
2024.02.13 15:26:57 +0530 "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."
It is an undisputed fact and also 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.
20. All the legal requirements constituting an offence u/s 138 NI Act have been proved in favour of complainant and against the accused. Accordingly, accused Nirmal Dagar is convicted for the alleged offence u/s 138 NI Act.
21. 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 13.02.2024. 2024.02.13
15:27:05
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(Aakanksha)
Metropolitan Magistrate(NI Act)-07
South West District, Dwarka Courts,
New Delhi
CC No. 12134/2017
Satender Kumar Singh vs Nirmal Dagar
Page no.39/39