Delhi District Court
M. Rose Simon vs State (Nct Of Delhi) on 26 July, 2016
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;NDPS
SOUTH DISTRICT, SAKET
Criminal Appeal No. 10/15
Unique ID No. 02406R0401552015
M. Rose Simon ..........Appellant
s/o Sh. H. Simon
r/o WZ 243A, FF, Inderpuri,
New Delhi 110012
versus
State (NCT of Delhi) ..........Respondent no. 1
Devender Kumar Sejwal ..........Respondent no. 2 s/o Sh. Hukum Singh r/o F8, Lado Sarai, Behind DDA Flats, New Delhi - 110030 Date of institution : 16th December 2015 Arguments concluded on : 15th July 2016 Order announced on : 26th July 2016 M. Rose Simon vs State & anr. Page no. 1 of 25 CA No. 10 of 2015 J U D G M E N T
1. This Criminal appeal has been preferred against the Judgment dated 21.11.2015 passed by Learned Metropolitan Magistrate02, South, whereby the appellant was held guilty for the offence punishable u/s 138 Negotiable Instruments Act (hereinafter referred as NI Act) and also against Order on sentence date 30.11.2015 whereby the appellant has been sentenced to Simple Imprisonment for six months and has been directed to pay compensation of Rs. 2,20,000/ to the complainant within the period of 30 days and in default of payment of compensation, he has to undergo Simple Imprisonment for two months.
2. Appellant herein faced the trial in Criminal Complaint titled as Devender Kumar vs M. Rose Simon in CC no. 7213/15, which has resulted in his conviction for the offence under Section 138 NI Act.
3. Trial Court Record (TCR) has been summoned. Notice of appeal was issued to respondents. In response to the notice, Sh. F. M. Ansari Ld. Addl. PP for the State/respondent no. 1 has appeared and in response to the notice, respondent no. 2 alongwith his counsel Sh. Navdeep has appeared.
4. At the outset, Learned Addl. PP had stated that State has no concern with the appeal as it has arisen out of a Judgment in a Criminal M. Rose Simon vs State & anr. Page no. 2 of 25 CA No. 10 of 2015 Complaint. I have heard arguments advanced by both the parties and have perused the Impugned Judgment and order on sentence as well as Trial Court Record (TCR).
5. Before adverting to the contentions of the appellant, brief facts of the case may be considered.
6. As per the allegations in the complaint, appellant/accused is the proprietor of the firm namely M/s Ambrosia Service, which provides outsourcing services to Banks. Appellant/accused induced the respondent/complainant to invest in his business by promising him good returns and consequent to this inducement, complainant/respondent had invested a sum of Rs. 8 lacs approximately in the business of appellant/accused. However, the appellant/accused did not disclose correct accounts to the complainant and also did not share the profits accordingly. When the complainant/respondent protested to this, he was asked to quit. On the request of the respondent/complainant for rendition of accounts, the appellant/accused agreed to pay a sum of Rs. 2,92,603/ to the respondent/complainant. To liquidate part liability of the illegally recoverable debt, appellant/accused issued a Post Dated Cheque bearing no. 904503 dated 20.03.2008 for a sum of Rs. 1,20,000/, which was drawn on Union Bank of India, Naraina, New M. Rose Simon vs State & anr. Page no. 3 of 25 CA No. 10 of 2015 Delhi. The respondent/complainant was assured that the cheque would be honoured on presentation. The cheque in question was presented but unfortunately, it was dishonoured for the reason "insufficient funds" twice vide the Bank Memos dated 20.03.2008 and 16.04.2008. Respondent/complainant then sent a legal demand notice by way of registered AD and UPC on 14.05.2008 and demanded the payment of dishonoured cheque. However, the appellant/accused failed to make the payment of the cheque despite receipt of legal notice of demand within a stipulated time. Therefore, the respondent/complainant had to file the present complaint u/s 138 NI Act against the appellant/accused.
7. During the trial, the respondent/complainant filed his affidavit, proved the cheque Ex. CW1/1; the Bank Return Memos Ex. CW1/2 to Ex. CW1/4; copy of legal demand notice Ex. CW1/6, receipt of AD and UPC Ex. CW1/7 and Ex. CW1/8 respectively and return envelope of registered AD Ex. CW1/9.
8. When the appellant/accused appeared in response to summon issued, he was served with a Notice u/s 251 Cr. PC on 24.09.2008. He had pleaded not guilty and claimed trial. Although, he admitted that cheque was issued by him under his signatures and after filing other details. He also admitted having received the legal demand notice.
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9. The appellant/accused had not disputed the issuance of cheque and receipt of legal notice. Even the facts stated in the complaint are not disputed. However, he had taken a stand in his defence that infact that account was settled between him and the respondent/complainant for a sum of Rs. 3,20,000/ and he had issued three cheques, out of which two cheques were for a sum of Rs. One lac each and one cheque was for a sum of Rs. 1,20,000/. With regard to the cheque in question, the defence taken by the appellant/accused was that he had made the payment of the cheque amount. He had taken the plea that Rs. 10,000/ were paid through bank Rs. 60,000/ was paid to one Sh. Jitendra, who is brotherinlaw of the respondent/complainant. Rs. 10,000/ was again deposited in the account of respondent/complainant by Sh. Mahendra, a Field Executive of the appellant/accused. Remaining amount of Rs. 40,000/ was also paid to the respondent/complainant in the presence of one Sh. S. K. Bhamra, a common friend. He also took defence that the entire payment has been made before presentation of the cheque in question for the second time. It may be pertinent to note here that the cheque in question (Ex. CW1/1) was presented initially on 20.03.2008, when it was returned unpaid on account of "insufficient funds". The M. Rose Simon vs State & anr. Page no. 5 of 25 CA No. 10 of 2015 cheque was presented for the second time on 16.04.2008, when it was returned unpaid on account of "insufficient funds". As per defence taken by the appellant/accused in the trial, the payment of the cheque amount was made during the intervening period of presentation of cheque on 20.03.2008 and 16.04.2008.
10. In support of his defence, accused has examined Sh. Mahender Rathore as DW1, who had proved deposit of Rs. 10,000/ in the account of the complainant/respondent on the instruction of appellant/accused. He also examined Ms. Ruth Mary as DW2 and Sh. Sukhwant Singh as DW3. Accused also examined Sh. Garuav Upreti, Senior Manager of ICICI Bank as DW4, who proved the cash deposit slip dated 28.03.2008 (Ex. DW4/1) for a sum of Rs.10,000/ and also the cash deposit slip dated 09.04.2008 (Ex. DW4/2). He also proved Statement of Account of Devender Kumar Sejwal (complainant) as Ex. DW4/3.
11. After considering the evidence, which was led on the record by the respondent/complainant and the appellant/accused, Learned Metropolitan Magistrate came to the conclusion that appellant/accused M. Rose Simon, Proprietor of M/s Ambrosia Services is guilty for the offence punishable u/s 138 NI Act and he was convicted accordingly on 21.11.2015 and he was awarded sentence on 30.11.2015.
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12. Learned counsel for appellant/accused has argued that one of the basic requirement for prosecution of an accused u/s 138 NI Act is the service of legal demand notice. He had argued that if the legal demand notice is defective then the conviction u/s 138 NI Act cannot be recorded. It was submitted that appellant/accused was successful in rebutting presumption in favour of complainant under Section 139 of NI Act by proving on record that subsequent to the dishonour of cheque on 20.03.2008, a sum of Rs. 10,000/ was deposited in the account of respondent/complainant on 28.03.2008 and another a sum of Rs. 10,000/ was deposited on 09.04.2008 vide receipt Ex. DW4/1 to Ex. DW4/2.
13. He argued that legal notice Ex. CW1/6, which has been issued subsequent to the date 16.04.2008, does not mention about the receipt of Rs. 10,000/ on 28.03.2008 and Rs. 10,000/ on 09.04.2008. It was argued that even if, the claim of appellant/accused that he had made the entire payment of cheque amount is not accepted, still there is a documentary proof, which is also admitted by respondent/complainant in his crossexamination that he received Rs. 20,000/ before presentation of the cheque on 16.04.2008 and issuance of a legal demand notice Ex.
M. Rose Simon vs State & anr. Page no. 7 of 25 CA No. 10 of 2015 CW1/6. It was argued by Learned counsel for the appellant that in the legal demand notice Ex. CW1/6 dated 14.05.2008, the amount claimed by the respondent/complainant is Rs. 1,20,000/, which is the cheque amount. While, it is proved on record that on the date when the legal notice was issued, at least, Rs. 20,000/ was already received by the respondent/complainant, which has not been accounted for in the legal notice Ex. CW1/6.
14. Learned counsel for respondent/complainant has relied upon Judgment of Delhi High Court in Alliance Infrastructure Project pvt. Ltd. and other vs Vinay Mittal 2011 (1) Crimes 487 wherein, a part payment was made subsequent to the presentation of the cheque and dishonour thereof but before the service of legal notice. The criminal complaint u/s 138 NI Act was quashed on the ground that on the date the cheque was presented for encashment, the amount due and payable to the complainant was much less than the amount mentioned in the cheque and the complainant had presented the cheque for encashment of the whole amount of the cheque and also demanded the cheque amount, without even referring to the part payment received by him. It was observed that payee of the cheque can present the cheque for payment of only that much amount, which is due to him after giving M. Rose Simon vs State & anr. Page no. 8 of 25 CA No. 10 of 2015 credit for the part payment made, after issuance of cheque.
15. Learned counsel for respondent/complainant has argued that defence taken by appellant/accused could not be established with regard to payment of Rs. 10,000/ vide receipt Ex. DW4/1 and Ex. DW4/2. He argued that respondent/complainant has categorically stated in his cross examination that this payment was towards some another transaction of a cheque of Rs. 1,20,000/ issued by the appellant/accused in his favour. He argued that no payment has been received towards the satisfaction of the cheque in question. The deposit receipts Ex. DW4/1 and Ex. DW4/2 are not sufficient to rebut the presumption u/s 139 NI Act in favour of respondent/complainant. It was argued that the defence taken by the accused in the statement of DW2 is contradictory to what the appellant/accused has stated in his statement u/s 313 Cr. PC.
16. Even the statement of Sh. Sukhwant Singh (DW3) is not very convincing because he deposed about payment of Rs. 40,000/ by the appellant/accused in his presence to the respondent/complainant, which is contrary to the statement of accused u/s 313 Cr. PC wherein he has stated that he had paid Rs. 40,000/ to the respondent/complainant in the presence of Sh. S. K. Bhamra, who is a common friend. The defence taken by the appellant/accused is contradictory, which establish that he M. Rose Simon vs State & anr. Page no. 9 of 25 CA No. 10 of 2015 has taken a false defence.
17. The burden of proof of the transaction which gives rise to liability u/s 138 of Negotiable Instruments Act, beyond reasonable doubt, would shift to complainant only if accused is successful in rebutting the presumption u/s 139 of NI Act. What is the standard of evidence by which the accused is required to rebut the presumption would depend on the facts and circumstances of each case. However, the standard of proof will not be that of beyond reasonable doubt but that of "preponderance of probabilities".
18. Hon'ble Supreme Court in M/s Kumar Exports vs M/s Sharma Carpets JT 2009 (1) SC 20 has held: "In order to determine the question whether the offence punishable under Section 138 of Negotiable Instruments Act is made out against the appellant it will be necessary to examine the scope and ambit of presumptions raised as envisaged by the provisions of Sections 118,138 and 139 of Negotiable Instruments Act."
M. Rose Simon vs State & anr. Page no. 10 of 25 CA No. 10 of 2015 It was further observed that:
"In a significant departure from the general rule applicable to the contracts, Section 118 of the Act provides certain presumptions to be raised. This section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the Instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (I) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for M. Rose Simon vs State & anr. Page no. 11 of 25 CA No. 10 of 2015 the discharge, in whole or in part of any debt or other liability. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
It is further observed;
"10. ......Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Section 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted."
19. The question now arises about the standard of proof which is required on the part of an accused to rebut this presumption which arises in favour of complainant. In Krishna Janardhan Bhat vs Dattatraya G. Hegde JT 2008 (1) SC 485, Hon'ble Supreme Court had dealt with the M. Rose Simon vs State & anr. Page no. 12 of 25 CA No. 10 of 2015 provision under Sections 118,138 and 139 of Negotiable Instruments Act and has observed that :
"Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
20. In this case the Hon'ble Supreme Court has also considered the earlier Judgment in Hiten P. Dalal vs Bratindranath Banerjee JT 2001 (5) SC 386 (AIR 2001 SC 3897 (1)) and also K. N. Beena vs Muniyappan and another JT 2001 (9) SC 228 (AIR 2001 SC 2895). The Hon'ble Supreme Court after dealing with these judgments observed that the law laid down therein is correct and the view which the Hon'ble Supreme Court has taken in the present case i.e. Krishna Janardhan Bhat vs Dattatraya G. Hegde (supra) is not inconsistent therewith. In Hiten P. Dalal vs Bratindranath Banerjee's case (supra), the Hon'ble M. Rose Simon vs State & anr. Page no. 13 of 25 CA No. 10 of 2015 Supreme Court while dealing with the presumption under Section 139 of Negotiable Instruments Act observed that it is presumption of law.
"21. Because both Section 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus onto the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond M. Rose Simon vs State & anr. Page no. 14 of 25 CA No. 10 of 2015 reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It was further observed that :
"22. In other words provides the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." Section 3:
Evidence Act. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the M. Rose Simon vs State & anr. Page no. 15 of 25 CA No. 10 of 2015 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'."
21. This view taken by Hon'ble Supreme Court in Hiten P. Dalal vs Bratindranath Banerjee's case (supra) was also discussed with approval in K. N. Beena vs Muniyappan and another's case (supra) .
22. In Krishna Janardhan Bhat vs Dattatraya G. Hegde's case (supra), the Hon'ble Supreme Court did not disagree with the view taken in Hiten P. Dalal vs Bratindranath Banerjee's case (supra) and K. N. Beena vs Muniyappan and another's case (supra) but added a dimension to the same by observing that :
"Principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record M. Rose Simon vs State & anr. Page no. 16 of 25 CA No. 10 of 2015 and having regard to legal principles governing the same."
23. In M/s Kumar Exports vs M/s Sharma Carpets case (supra), the Hon'ble Supreme Court again dealt with the same situation and observed as under:
"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."
24. The settled legal position under the scheme of Negotiable Instruments Act is that statutory presumption has been created in favour of the holder of Negotiable Instruments Act in due course. Section 139, as discussed above, framed the Court to presume liability of the drawer of the cheque and Section 118 envisages that unless the contrary is proved, it shall be presumed that Negotiable Instruments including a cheque has been drawn for consideration. In view of legal position as discussed above, the only issue which is to be considered as whether the legal demand notice (Ex. CW1/6) is a valid legal demand notice in terms of Clause (b) to Proviso to Section 138 of NI Act.
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25. An offence under Section 138 of Negotiable Instruments Act is not committed simply on the dishonour of the cheque. An offence is completed when despite a legal demand notice, the drawer fails to make the payment within the stipulated time. Therefore, apprising the drawer of the cheque about the dishonour of the cheque and demanding the legally recoverable due is one of the basic ingredient of the offence u/s 138 Negotiable Instruments Act. The object of issuing the notice indicating the factum of dishonour of the cheque is to give an opportunity to the drawer to make the payment within the stipulated period of 30 days, so that there is no necessity to initiate any criminal action, even though the cheque has been dishonoured by the bank. Although, there is no specific format of the notice prescribed in Clause (b) of the proviso to section 138 of NI Act, the requirement is that notice shall be given in writing within 30 days of the receipt of the information from the bank regarding return of the cheque as unpaid and a demand for payment of the amount of the cheque is made.
26. Learned counsel for appellant/accused has argued that legal demand notice (Ex. CW1/6) is not as per the law. He submitted that the respondent/complainant has not accounted the payment received by him subsequent to the first presentation of the cheque for encashment, therefore, the amount claimed by the respondent/complainant in the legal M. Rose Simon vs State & anr. Page no. 18 of 25 CA No. 10 of 2015 demand notice Ex. CW1/6 was not the legally recoverable debt. It is not in dispute that the cheque in question has been presented twice. Initially, it was dishonoured on 26.03.2008 and lateron, it was presented on 16.04.2008 pursuant to which the legal demand notice Ex. CW1/6 was issued. The case of the appellant/accused is that in between he has made payment of the cheque amount.
27. Although the appellant/accused has examined four witnesses to prove that he made the payment of entire cheque amount but apparently, there is contradiction in the statement of the witnesses with regard to the payment. As per the defence of the appellant/accused, he made payment of Rs. 40,000/ to the respondent/complainant in the presence of Sh. S. K. Bhamra, a common friend. The said Sh. S. K. Bhamra has not been examined. Sh. Sukhwant Singh (DW3) deposed that a sum of Rs. 40,000/ was paid by the accused (appellant) to the complainant (complainant) in his presence. Notwithstanding, the contradiction noted in the statement of Sh. Sukhwant Singh (DW3) and Ms. Rathmary (DW2) with regard to the payment of Rs. 60,000/ and of Rs. 40,000/. The payment of Rs. 10,000/ on 28.03.2008 and 16.04.2008 stands proved. Sh. Gaurav Upreti (DW4) had brought the cash deposit slips dated 28.03.2008 (Ex. DW4/1) and 16.04.2008 (Ex. DW4/2) of Rs. 10,000/.
M. Rose Simon vs State & anr. Page no. 19 of 25 CA No. 10 of 2015 He also produced the statement of account (Ex. DW4/3) of the respondent/complainant. The payment of Rs. 20,000/ in account of the respondent/complainant stands proved. This evidence was sufficient to rebut the presumption u/s 139 of NI Act in favour of complainant. The burden has shifted upon the respondent/complainant to prove that this payment of Rs. 20,000/ relate to some other transaction.
28. When the complainant was confronted with the fact that Rs. 10,000/ was deposited in his account on 28.03.2008 and also in the first week of April of 2008, he did not deny about the deposit of amount in his account. However, he took the plea that this amount was deposited towards some other transaction of giving a cheque of Rs. 1,20,000/
29. Thus, the respondent/complainant has admitted about the receipt of Rs. 20,000/ by way of cash deposit in his account subsequent to the dishonour of the cheque on 26.03.2008 and before the dishonour of cheque on 16.04.2008. Admittedly, the legal demand notice has been sent subsequently on 16.05.2008, but there is no mentioning of the fact that Rs. 20,000/ has been deposited in his account. The burden of proof upon the accused to rebut the presumption u/s 139 of NI Act is not as heavy as it is upon the prosecution to prove the allegations. An accused can disprove and rebut the presumption u/s 139 of NI Act on the M. Rose Simon vs State & anr. Page no. 20 of 25 CA No. 10 of 2015 principle of preponderance of probabilities. Once this presumption is rebutted, then the onus would again shift on the complainant to prove his case beyond reasonable doubt.
30. Since the payment of Rs. 20,000/ has been admitted by the respondent/complainant, what would be the effect of this payment upon the present case, in the absence of any evidence by complainant that this payment relate to some other transaction.
31. In the case of Alliance Infrastructure Project pvt. Ltd. and other vs Vinay Mittal (supra), it has been held;
"8. The question which comes up for consideration is as to what the expression 'amount of money' means in case where the admitted liability of the drawer of the cheque gets reduced, on account of part payment made by him, after issuing but before presentation of cheque in question. No doubt, the expression 'amount of money' would mean the amount of the cheque alone in case the amount payable by the drawer, on the date of presentation of the cheque, is more than the amount of the cheque. But, can it be said the expression M. Rose Simon vs State & anr. Page no. 21 of 25 CA No. 10 of 2015 'amount of money' would always mean the amount of the cheque, even if the actual liability of the drawer of the cheque has got reduced on account of some payment made by him towards discharge of the debt or liability in consideration of which cheque in question was issued. If it is held that the expression 'amount of money' would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the admitted amount payable by him to the payee of the cheque. In case, he is not able to make arrangement for the whole of the amount of the cheque, he would be guilty of the offence punishable u/s 138 of Negotiable Instruments Act. Obviously, this could not have been the intention of the legislature to make a person liable to punishment even if he has made arrangement necessary for payment of the amount which is actually payable to him. If the drawer of the cheque is made to pay more than the amount M. Rose Simon vs State & anr. Page no. 22 of 25 CA No. 10 of 2015 actually payable by him, the inevitable result would be that he will have to chase the payee of the cheque to recover the excess amount paid by him. Therefore, I find it difficult to take the view that even if the admitted liability of the drawer of the cheque has got reduced, on account of certain payments made after issue of cheque, the payee would nevertheless be entitled to present the cheque for the whole of the amount, to the banker of the drawer, for encashment and in case such a cheque is dishonoured for wants of funds, he will be guilty of offence punishable under Section 138 of Negotiable Instruments Act."
32. In view of ratio laid down in this case, it can be safely concluded that the amount due and payable to the respondent/complainant was much less than the amount represented by the cheque in question (Ex. CW1/1). The expression "amount of money" referred in clause (b) of the Proviso to Section 138 of NI Act would not mean the cheque amount in each and every case. The drawer of the cheque cannot be expected to M. Rose Simon vs State & anr. Page no. 23 of 25 CA No. 10 of 2015 make the payment of the cheque amount when before it is presented and dishonoured, he has made some payment towards the discharge of the legally recoverable debt/liability.
33. From the evidence on record, it is apparent that respondent/complainant had received atleast Rs. 20,000/ before the cheque in question was presented on 16.04.2008. However, in the legal demand notice Ex. CW1/6, he has made a demand of Rs. 1,20,000/, which infact was not the due amount on the date of issuance of the demand notice. The respondent/complainant has not proved that this payment was towards some other transaction. Therefore, the legal is not valid in the present case.
34. As observed above, the legal demand notice is basic ingredient of the offence u/s 138 of Negotiable Instruments Act. Since, this basic requirement was not fulfilled, the complaint was bound to fail. In view of foregoing discussion and in view of facts and circumstances and evidence led on record, the Appeal stands allowed the impugned Judgment dated 21.11.2015 and Order on sentence date 30.11.2015 passed by Learned Metropolitan Magistrate is set aside. Appellant/accused stands acquitted of the charge u/s 138 of Negotiable Instruments Act,1881.
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35. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order.
36. Appeal file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Ajay Kumar Kuhar)
open Court on Special Judge (NDPS)
26th July 2016) South District: Saket
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