Delhi District Court
Shakti Dying vs . Parmeet Singh Chatwal Page 1 Of 34 on 3 August, 2023
IN THE COURT OF MS. AAKANKSHA, METROPOLITAN
MAGISTRATE, (NI ACT)07
SOUTHWEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No. 11472 of 2019
CNR No. DLSW020143142019
M/s Shakti Dyeing .........Complainant
Through: Mr. Vikas Vats, Advocate
Versus
Parmeet Singh Chatwal ..........Accused
Through: Mr. Prashant Yadav,Advocate
(1) Name of the complainant M/s Shakti Dyeing
F77, Site B, Surajpur, Greater
Noida, Distt. Gautam Budh
Nagar
Also at:
E88, Chanakya Place, Pankha
Road, New Delhi - 110059
through proprietor Sh. Ravi
Kumar S/o Sh. Than Singh
R/o B008, Black Gold
Apartments, Omega 1st,
Greater Noida, U.P. presently
at: House No. 302, Tower 18,
Unitech Horizon, Pi2, Greater
Noida, U.P.
(2) Name of the accused Parmeet Singh Chatwal
S/o late Sh. Kulbir Singh
Digitally signed
by AAKANKSHA
AAKANKSHA Date:
2023.08.03
Ct. Case No. 11472/2019 16:52:12 +0530
Shakti Dying Vs. Parmeet Singh Chatwal Page 1 of 34
R/o. 5/56, 2nd Floor, Punjabi
Bagh West, Delhi
(3) Offence complained of or Section 138 Negotiable
proved Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of case 12.06.2009
(6) Date of conclusion of 27.07.2023
arguments
(7) Date of Final Order 03.08.2023
(8) Final Order ACQUITTAL
JUDGMENT
1. The complainant M/s Shakti Dyeing through proprietor Ravi Kumar has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Parmeet Singh Chatwal on 03.06.2007 in the District Court of Gautam Buddh Nagar, UP.
2. The factual matrix as can be culled out from the complaint is that accused is the proprietor of M/s Mahima Exports which is a proprietorship firm, that complainant dyed the material supplied by accused on the demand of accused and returned the same against bill, that in part payment of the bills accused issued cheque in question bearing no. 746929 dated 20.04.2009 for an amount of Rs.4,15,000/ drawn on ABN Amro Bank to the complainant with assurance of its encashment upon presentation. However, to the Digitally signed Ct. Case No. 11472/2019 by Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Page 2 of 34 AAKANKSHA Date:
2023.08.03 16:52:38 +0530 complainant's dismay the said cheque was returned unpaid with remarks "Payment stopped by drawer" vide return memo dated 20.04.2009, which was received by complainant on 22.04.2009. The complainant then issued a legal notice dated 05.05.2009 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 the accused failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonor of the 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. CW1/A. The complainant relied upon following documentary evidence:
(a) Original cheque bearing no. 746929 dated 20.04.2009 drawn on ABN Amro for an amount of Rs. 4,15,000/, which is Ex. CW1/1.
(b) Original cheque return memo dated 20.04.2009, which is Ex.
CW1/2.
(c) Statement of account, which is Ex. CW1/3.
(d) Legal notice dated 05.05.2009, which is Ex. CW1/4.
(e) Postal receipts, which are Ex. CW1/5 (colly.)
(f) UPC receipts, which are Ex. CW1/6 and Ex. CW1/7.
Complainant closed his presummoning evidence on 19.06.2009.
Digitally signed by AAKANKSHA AAKANKSHA Date:
Ct. Case No. 11472/2019 2023.08.03
Shakti Dying Vs. Parmeet Singh Chatwal 16:52:46 Page 3 of 34
+0530
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 30.07.2009. Accused entered his first appearance on 14.10.2010.
5. Notice u/s 251 Cr.P.C. was framed against accused on 07.05.2014 stating out to him the substance of accusation, to which he pleaded not guilty and claimed trial. His defence was recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that the cheque in issue was given as security, complainant neither returned his fabric according to the commitment nor did he returned the cheque to him, he gave stop payment instruction only after informing the complainant, he did not receive any notice qua the cheque in issue, complainant approached the court with malafide intention to grab extra money.
6. There is no specific order granting accused right to crossexamine the complainant. The complainant was examined in chief on 18.07.2014 deposing that he is proprietor of M/s Shakti Dyeing, for the fabric he gave to Mahima Export after dyeing, he received cheque no. 746929 for payment of the same, he has all the PO challan bills, the accounts was settled after returning the fabric, accused gave four cheques of total Rs. 16 lacs approximately after settling the accounts, he presented the cheque in issue for Rs. 4,15,000/ in his bank but the same was dishonoured after three days, he informed the same to accused over telephone and he complied with the legal proceedings through his counsel within the time limit Ct. Case No. 11472/2019 Digitally signed by Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Page 4 of 34 AAKANKSHA Date:
2023.08.03 16:52:53 +0530 prescribed. Thereafter the case was transferred to Delhi District Court vide order passed by Hon'ble High Court of Delhi dated 31.12.2018. CW1 was duly crossexamined and discharged. During cross examination of CW1 accused confronted him with documents i.e. copy of notice dated 04.03.2009 issued by complainant in the name of firm of accused, as Ex. CW1/D1 and reply given by complainant dated 09.03.2009, as Ex. CW1/D2. Vide separate statement of complainant, complainant evidence was closed on 04.12.2021.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 21.05.2022 wherein all the incriminating evidence was put to the accused and he was granted an opportunity to explain the circumstances appearing against him at trial. While explaining the circumstances appearing in evidence against him, accused stated without oath that he is proprietor of M/s Mahima Export, he used to place numerous orders for dyeing with the complainant, in certain transactions complainant did not used to work as per satisfaction, job work bill was given by complainant after the work was completed, statement of account Ex. CW1/3 does not reflect two entries of the payment made by him amounting to Rs. 4,20,000/ paid vide pay order and Rs. 4,50,000/ vide cheque which was duly cleared, cheque in issue bears his signature but the remaining particulars were not filled by him, he gave the cheque in issue as security to complainant, complainant did not return his fabric worth Rs. 30,00,000/ to Rs. 35,00,000/ for which he sent legal notice dated 27.02.2009, he also lodged police complaint on 04.03.2009 against complainant, cheque has been misused, he did not receive legal notice but it bears his correct address except that the floor number is not mentioned. Accused preferred to lead evidence in his defence.
Ct. Case No. 11472/2019 Digitally
signed by
Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Page 5 of 34
AAKANKSHA Date:
2023.08.03
16:53:06
+0530
8. At the stage of defence evidence, accused preferred an application u/s 315 Cr.P.C and the same was allowed vide order dated 17.12.2022. Accordingly, accused examined himself as DW1 and was duly crossexamined and discharged. He relied upon legal notice dated 27.02.2009 as Mark DW1/1, reply of complainant dated 09.03.2009 to the said notice as Ex. CW1/D2, copy of statement of account reflecting clearing of cheque as Mark DW1/2, payment proof of Rs. 4,20,000/ as Ex. CW1/D3, telegram notice to complainant on 09.04.2009 as Ex. CW1/D4. During crossexamination of DW1 complainant confronted accused with documents i.e. original cheque bearing number 233435 for an amount of Rs. 1,79,050/, original cheque bearing number 233438 for an amount of Rs. 1,79,045/, original cheque bearing number 233437 for an amount of Rs. 1,79,051/, original cheque bearing number 233436 for an amount of Rs. 1,79,048/, all undated and issued by accused in the name of complainant, as Ex. DW1/C1 (colly.). Accused also examined witness from GPO Delhi as DW2, bank witness from Standard Chartered Bank as DW3, witness from PNB as DW4 and witness from BSNL as DW5. Defence Evidence stood closed on 29.04.2023.
9. At the stage of final arguments, Ld. counsel for complainant submitted his written arguments to the effect that complainant has filed two complaints u/s 138 NI Act bearing number 11472/2019 and 11473/2019 against the same party, complainant did the dyeing work on clothes supplied by accused on the orders of accused and the accused received back the goods to his full satisfaction and also received bill for the job work, statement of Digitally Ct. Case No. 11472/2019 signed by Shakti Dying Vs. Parmeet Singh Chatwal Page 6 of 34 AAKANKSHA AAKANKSHA Date:
2023.08.03 16:53:42 +0530 account of complainant with accused is proved through Ex. CW1/3, in both the complaints accused signed and issued the cheques towards part payment of the pending bills, accused also admitted his signature on the cheques, legal notice was duly served upon accused on 09.05.2009, proof of delivery is Ex. CW1/5, accused did not respond to the said legal notice, presumption u/s 20 NI Act is in favour of complainant as accused admitted his signature on the cheque in issue, accused failed to prove that the cheque was handed over as security, it is admitted fact that cheque was given by accused to complainant without any force, business relations and transactions are admitted, the cheques were not against a particular bill but were on account, accused admitted both the addresses on the legal notice to be his, accused stated that floor number of Rajouri Garden address was not mentioned on the legal notice but the said floor number was not mentioned even by accused in Ex. DW1/1, there were many transactions between the parties and due to lapse of 10 years complainant could not recognise the payments asked by accused in crossexamination, accused did not ask return of cheques by any letter or notice nor did he put any such defence to complainant, liability qua the cheque was never denied by accused after including all the payments, there is no occasion for accused to give cheque as security for the reason that accused claim that his material used to lie with complainant and had it been so, then complainant would have given security cheques to accused for retaining the valuable material and not the other way round, accused changed his defence time and again, at the time of bail he said that he gave the cheques but complainant did not return his cloth but on other hand he put defence that he has returned the money through drafts and at other place he said he gave security cheques, during proceeding of the present case accused Digitally signed by Ct. Case No. 11472/2019 AAKANKSHA Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date: Page 7 of 34 2023.08.03 16:53:48 +0530 voluntarily gave four cheques as settlement but he did not speak about it in his letter, notice, defence or during crossexamination of complainant nor asked these cheques back from complainant, accused placed on record forged document Ex. DW1/1 as it is not original and not put to complainant in his crossexamination, and prayed to convict the accused. Ld. counsel for complainant relied upon the case of Smt. Shamshad Begum v. B. Mohammed AIR 2009 Sc 1355 in favour of his written submissions.
Per contra, Ld. counsel for accused filed written arguments to the effect that the cheque in question was a security cheque and has only been signed by accused, accused did not have any legal liability towards complainant, accused made two payments to complainant of Rs. 4,50,000/ on 02.05.2008 through cheque no. 503745 drawn on Royal Bank of Scotland and filed statement of account Mark DW1/2 substantiated with evidence of DW3 and Rs. 4,20,000/ on 05.05.2009 through pay order no. 059397 cleared on 08.05.2009 confirmed by statement of account of complainant submitted by DW4, accused also sent telegram on 09.04.2009 intimating stop payment of cheques but despite receiving the same complainant misused the security cheques to extract illegal money from accused, complainant admitted that on many occasions the job work was not done upto expectation of accused, complainant has accepted that fabric worth Rs. 14 lacs was lying with him in his cross examination, in his reply complainant's counsel also stated that he will sell the fabric of accused if payment is not made within 7 days therefore it is evident that fabric sent by accused worth Rs. 14 lacs was illegally retained by complainant, that on 15.01.2009 accused supplied fabric worth Rs. 3334 lacs to complainant for dyeing which was not completed by complainant even till the extended time sought Ct. Case No. 11472/2019 Digitally signed by Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Page 8 of 34 AAKANKSHA Date:
2023.08.03 16:53:55 +0530 by him nor did he return the fabric to accused which resulted in loss of money and reputation of accused, accused made several efforts to get back the material from complainant, on 27.02.2009 accused sent legal notice to complainant demanding fabric within 3 days but complainant did not comply, complainant gave a reply on 09.03.2009 to adjust the amount of fabric in some bills even though no bill was pending on part of accused, thus accused made police complaint dated 04.03.2009 to SHO, PS Naraina against complainant's misconduct and dishonest intentions, complainant failed to place on record the record of the material supplied to accused after dyeing, or any work/purchase orders placed by accused, or any receiving of the returned material to accused, or bank account statement maintained with PNB Vikas Puri and thus concealed true facts and relied upon the following case laws in support of his submissions: Sripati Singh v. State of Jharkhand 2021 SCC OnLine SC 1002, M.S. Narayana Menon @ Mani v. State of Kerala AIR 2006 SC 3366, Punjab State Coop. Supply & Mkt. Federation Ltd. v. M/s Goyal Rice & Oil Mills (P&H) 2009 (4) R.C.R.(Criminal) 612, Indus Airways Private Ltd. v. Magnum Aviation Private Ltd. (2014)12 SCC 539, Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. (2016) 10 SCC 458,, Surendra Pal Singh v. State of Uttar Pradesh Cri.Rev.P. 1299/2010, Mohammed Sulaiman v. Mohammed Ayub and ors. AIR 1965 SC 1319, Ramaswamy Nadar v. State of Madras AIR 1957 SC 556, A Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012)6 SCC 430, Ram Saran v. IG of Police, CRPF and ors. (2006)2 SCC 541 and S.P. Chengalvaraya Naidy v. Jagannath AIR 1994 SC 853.
Digitally signed by AAKANKSHA AAKANKSHA Date:
Ct. Case No. 11472/2019 2023.08.03
Shakti Dying Vs. Parmeet Singh Chatwal 16:54:03 Page 9 of 34
+0530
Ld. counsel for accused also orally submitted that no tracking report of the legal notice has been filed by complainant, complainant did not file the record maintained by him for transactions with accused, he did not file work purchase order, the bill number against which cheque in question is stated to be issued is not disclosed by complainant in the entire complaint, he did not bring the accountant in his evidence to prove as to which bill was pending and for which bill the cheque in question was stated to be issued, statement from 01.04.2007 till 31.03.2008 have not been filed by complainant because payments were received by complainant during that time period, complainant did not file statement of account of his account maintained with PNB, Vikas Puri in which payment of Rs. 4,20,000/ has been received from accused, Ex. CW1/3 does not bear sign of accountant or stamp, CW1 admitted that he used to take receiving from accused after delivering the material but no such receiving has bene placed on record, CW1 denied receiving any notice from accused but later admitted that he sent letter to accused, even in reply complainant has admitted that he has in his possession material of accused, no delivery challan of last transaction with accused has been filed by complainant, that even after issuance of cheque accused made payment of Rs. 4,50,000/ which has been withheld by complainant, Chetna has not been produced in evidence, CW1 does not know the balance payment against the accused, he does not when and to whom and what material was returned to accused firm, there is no explanation why complainant has not filed any of such documents on record till date, that the complainant misused the security cheque given to him at the beginning of business.
Digitally
signed by
AAKANKSHA
AAKANKSHA Date:
2023.08.03
16:54:10
Ct. Case No. 11472/2019 +0530
Shakti Dying Vs. Parmeet Singh Chatwal Page 10 of 34
10. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
11. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s 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;
Digitally Ct. Case No. 11472/2019 signed by AAKANKSHA Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date:
Page 11 of 342023.08.03 16:54:16 +0530
(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
12. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 Ct. Case No. 11472/2019 Digitally signed Shakti Dying Vs. Parmeet Singh Chatwal Page 12 of 34 by AAKANKSHA AAKANKSHA Date: 2023.08.03 16:54:22 +0530 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show nonexistence 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 nonexistence 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 complainant in the testing ordeal of crossexamination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Digitally signed Page 13 of 34 by AAKANKSHA AAKANKSHA Date:
2023.08.03 16:54:29 +0530 under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence. It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.
13. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
13.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheque in question on his account maintained with a bank Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Digitally signedPage 14 of 34 by AAKANKSHA AAKANKSHA Date:
2023.08.03 16:54:35 +0530 for discharge of any debt or other liability. In the instant case, accused has admitted his signatures on the cheque in question in his statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheque in question have also been drawn on the account maintained by him with ABN Amro 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.
(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 Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Page 15 of 34 Digitally signed by AAKANKSHA AAKANKSHA Date: 2023.08.03 16:54:41 +0530 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."
13.2. In the instant case, the accused having admitted his signatures on the cheque in question and the said cheque being drawn on his 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 him in discharge of, whole or part of, legally enforceable debt or liability.
13.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the crossexamination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).
13.4. The accused has chosen to do so by crossexamining the complainant and leading defence evidence. It is the defence of Digitally signed by AAKANKSHA Ct. Case No. 11472/2019 AAKANKSHA Date:
2023.08.03 Shakti Dying Vs. Parmeet Singh Chatwal 16:54:47 +0530 Page 16 of 34accused that complainant illegally retained with him fabric of accused worth Rs. 3334 lacs and sent wrong notice to him to make payment even though no bill was due against accused, that accused tried several ways to recover his fabric and also sent complainant a telegram intimating stop payment of the security cheque, but complainant misused his security cheque and filed this case and that the statement of account filed by complainant does not reflect two payments of Rs. 4,50,000/ and Rs. 4,20,000/ made by accused and that he has no liability.
13.5. To prove his defence, accused crossexamined the complainant. During crossexamination CW1/complainant deposed, in brief, that he is the sole proprietor of the firm Shakti Dyeing, Radhey Shyam was manager of the said firm and not the proprietor, bank account of the said firm was in Noida branch as well as in Delhi branch, he was authorised signatory of the firm for operating bank accounts in 2009, the dealing with accused started in 2007, accused used to supply raw material i.e. cloth and he used to dye the same and return to accused, he used to maintain the record of raw material supplied by accused and that supplied to the accused but did not file any on record, material supplied by accused used to get defective while dyeing and he used to compensate the accused for the said defect, accused used to place written orders, he used to raise bills for the work done for accused but did not file any on record, cheque in question was not issued against any particular bill, he gave several bills to accused and does not remember the particulars of bill as mentioned by him in para 4 of affidavit Ex. CW1/A, he did not misuse the cheque given as security, statement Ex.CW1/3 was prepared by his accountant Sumant, he did not file statement of Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Digitally signed Page 17 of 34 by AAKANKSHA AAKANKSHA Date:
2023.08.03 16:54:54 +0530 account from 01.04.2007 to 31.03.2008, he does not remember whether accounts of accused before 01.04.2008 were cleared or not, no payment was made by accused through demand drafts, he did not file bank account statement maintained with PNB Vikas Puri, accused did not pay Rs. 4,20,000/ through DD, every bill raised by him is in three sets, his staff used to deliver the material to accused after completion of job against receiving, but he did not put any such receiving on record, cheque in question was given 1012 days prior to date mentioned therein, accused gave five cheques to him, he did not receive any notice dated 27.02.2009 from counsel of accused, he is also known by the name of Ravinder Kumar, he sent letter dated 04.03.2009 Ex. CW1/D1 and it bears his signature, he does not remember whether his counsel sent reply dated 09.03.2009 to notice dated 27.02.2009 Ex. CW1/D2, he does not have material of accused worth Rs. 33,00,000/ with him, the last transaction with accused took place before April 2009, Radhey Shyam delivered the last goods to manager of accused but he does not remember name of manager of accused or meter of cloth returned, the balance payment which was to be made by accused uptil 31.03.2008 is the balance between Mark X1 to X2 in Ex.CW1/3, it is not forged document, he did not receive any payment from accused after dishonour of cheque in issue by way of DD, he did not receive certificate for DD no.059397 dated 05.05.2009 Ex. CW1/D3 and it was not deposited in his branch of PNB, Vikas Puri, Sumant is no more working with him who prepared Ex. CW1/3, Sumant used to primarily deal with accused, in absence of Sumant Chetna used to deal with accused, he or his accountant did not give any statement of balance payment to accused, his accountant did not take any receiving of statement of account from accused or his employees, he does not remember how much fabric was remaining as Digitally signed Ct. Case No. 11472/2019 by AAKANKSHA AAKANKSHA Date: 2023.08.03 Shakti Dying Vs. Parmeet Singh Chatwal 16:55:01 +0530 Page 18 of 34 mentioned in Ex. CW1/D1 but he has challan having receiving of accused, he does not know the cost of fabric mentioned in Ex.
CW1/D1, Sumant and Radhey Shyam returned the fabric mentioned in Ex. CW1/D1 after 04.03.2009 but he does not remember the date of return, he did not file the receiving given on behalf of accused for return of fabric, he used to directly receive and store fabric from Sara Expo Fab Pvt. Ltd. but Sara Expo did not used to get dyeing work done from him, the remaining fabric mentioned in Ex. CW1/D2 in para 3 was worth more than Rs. 14,00,000/, it is correct that his counsel in Ex. CW1/D2 asked accused to either pay the amount in 7 days and take back the fabric or they would sell the same and recover the payment, but the fabric was not sold by him, no information was sent to him via telegram dated 09.04.2009 that no payment was due and therefore stop payment instructions were given to the bank, the receipt of telegram is Ex. CW1/D4, he does not remember if his counsel has taken delivery report of legal notice Ex. CW1/4 from post office, he does not remember the exact address of accused firm but it was in Naraina, legal notice was not sent on incorrect address and denied the suggestion that Ex. CW1/3 is false and fabricated and there is no signature of accountant on it.
13.6. Accused examined himself in defence as DW1 and deposed that he is proprietor of M/s Mahima Exports, he came into contact with complainant in 20062007, he used to provide fabric to complainant for dyeing, complainant used to raise invoices after dyeing and delivering the fabric to him, a lot of time work was not done by complainant upto his satisfaction, he supplied fabric worth Rs. 3334 lacs to complainant on 15.01.2009 which was to be dyed in a weeks' time but complainant sought extension till 13.02.2009 but Digitally signed Ct. Case No. 11472/2019 by AAKANKSHA Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date: Page 19 of 34 2023.08.03 16:55:07 +0530 failed to complete the work or return the fabric, he then issued notice dated 27.02.2009 Mark DW1/1 to complainant demanding the fabric within 3 days but complainant failed to return the same, he received vague reply from complainant dated 09.03.2009 Ex. CW1/D2 to adjust the amount of fabric from some bills but there were no pending bills, the statement of account relied upon by complainant does not mention two payments made by him i.e. Rs.4,50,000/ through cheque on 02.05.2008 and Rs.4,20,000/ through pay order on 05.05.2009 which was cleared on 08.05.2009, proof of the payments are Mark DW1/2 and Ex. CW1/D3 respectively, he has no liability towards complainant, all the cheques were given as security cheques which were misused by complainant, he also sent a telegram to complainant on 09.04.2009 Ex. CW1/D4 intimating stop payment of cheques, he did not receive legal notice from complainant as address on the same is wrong. During crossexamination, DW1 deposed that in 2009 dispute arose between them as complainant retained his fabric, he issued notice to the complainant in 2009, he did not file ledger on record, cheque in question bears his signature but is not filled by him, both the addresses mentioned on legal notice Ex. CW1/4 are his but the first address of Rajouri Garden does not bear floor number, he is proprietor of Mahima Exports and director of Mahima Exports Pvt. Ltd., he used to sign cheque on behalf of Mahima Export Pvt. Ltd., he did not file any case against complainant for recovery of material, he did not give any notice to complainant for return of his cheques prior to notice Ex. CW1/4 but he gave telegram message to complainant not to present the cheques, there was no transaction with complainant after filing of this case, the four cheques Ex. DW1/C1 bear his signature but not filled in his handwriting. Further questions with Digitally signed by AAKANKSHA Ct. Case No. 11472/2019 AAKANKSHA Date:
Shakti Dying Vs. Parmeet Singh Chatwal 2023.08.03 Page 20 of 3416:55:14 +0530 respect to giving these four cheques to complainant towards settlement during the proceedings were disallowed.
13.7. Accused also examined Mr. Kuldeep Sharma, Public Relation Inspector as DW2 who could not produce the record of telegram serial no. 4229 A2 dated 09.04.2009 as the said telegram service was not provided from New Delhi GPO and relied upon statement of Assistant Director to the above effect as Ex. DW2/1. He did not depose anything in favour of accused and was not cross examined by complainant despite opportunity given.
13.8. Accused also examined bank witness from Standard Chartered Bank, Gurgaon as DW3 who relied upon his authority letter dated 16.03.2023, certificate u/s 65 B Indian Evidence Act and account statement of account no. 52505086014 in the name of M/s Mahima Exports showing entry of DD No. 059397 on 05.05.2009 as Ex. DW3/1 (colly.). During crossexamination, the witness deposed that he did not sign certificate u/s 65 B Indian Evidence Act and he did not file incorrect statement of account.
13.9. Accused also examined bank witness from PNB, Vikas Puri as DW4 who relied upon certificate u/s 2A(b) and 2A(c) Bankers Book Evidence Act, account statement of account no.
1610002100015854 in the name of Shakti Dyeing and Ravinder Kumar for period 01.04.2008 to 30.04.2009 showing record of cheque no. 583746 on 02.05.2008 and record of DD No. 059397 on 09.05.2009 as Ex. DW4/1 (colly.). During crossexamination, the Digitally signed by AAKANKSHA Ct. Case No. 11472/2019 AAKANKSHA Date: 2023.08.03 Shakti Dying Vs. Parmeet Singh Chatwal 16:55:20 +0530 Page 21 of 34 witness deposed that he did not sign Ex. DW4/1 but the same is signed by Branch Head, Chief Manager in his presence, he did not file incorrect statement of account.
13.10. Accused also examined Mr. Arvind Aggarwal, SDE BSNL as DW5 who relied upon letter from BSNL, Corporate office regarding discontinuation of telegram services and rule for India Telegram as Ex. DW5/A (colly.). He was not crossexamined despite opportunity given.
13.11. Admittedly, the firms of complainant and that of accused were having business relations whereby accused used to supply fabric to complainant for dyeing purposes and after the completion of job, the fabric was returned to accused. It is also admitted fact that accused issued the cheque in question to the complainant under his signature. It is the case of complainant that accused issued the cheque in question, with three other cheques towards payment for the dyeing work done by complainant. Whereas it is the defence of accused that the cheque in question was issued as a security which has been misused by complainant and the complainant illegally retained his fabric worth Rs. 3035 lacs and also did not return his cheques despite his notices and that he has no liability to pay the complainant.
13.12. From the evidence on record, the course of events as surfaced is as follows:
Digitally signed by AAKANKSHAAAKANKSHA Date:2023.08.03 16:55:27 +0530 Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Page 22 of 34
(a) The accused sent a notice dated 27.02.2009 to complainant (Mark DW1/1) seeking immediate release of illegal withheld fabric worth Rs. 33.44 lac.
In this notice, accused has alleged that the complainant promised to get the fabric dyed and return the same within 7 days of receipt of fabric but did not oblige and the accused demanded return of his fabric after completion of dye work within 3 days of receipt of notice. He also demanded from complainant a complete statement of account in case there are any unpaid dues and promised to pay his dues. Although CW1 has denied receiving of any such notice or sending reply to the said notice through his counsel, however the reply to the said notice sent on behalf of complainant to accused is already on record viz. Ex. CW1/D2. The complainant has merely denied receiving of notice and also merely denied having knowledge if any reply to such notice was sent by his counsel. In absence of any specific denial and in absence of complainant proving to the contrary, it is presumed that he sent reply to the legal notice on 09.03.2009 viz. Ex. CW1/D2 through his counsel. Thus, the receipt of notice sent by accused (Mark DW1/1) is proved.
(b) Thereafter, complainant sent a letter dated 04.03.2009 to accused viz. Ex. CW1/D1 regarding outstanding dues against accused.
Vide such letter, complainant demanded outstanding payment of Rs. 27,42,691.55/ from accused in accordance with their meeting dated 10.02.2009 and also referred to an alternate option given by accused to dispose off the fabric lying with complainant to recover the payment to the extent possible and sought confirmation of disposal of fabric.
Digitally signed by AAKANKSHAAAKANKSHA Date:
Ct. Case No. 11472/2019 2023.08.03
16:55:34 +0530
Shakti Dying Vs. Parmeet Singh Chatwal Page 23 of 34
(c) Then the complainant sent reply dated 09.03.2009 to the notice of accused dated 27.02.2009 viz. Ex. CW1/D2.
Vide such reply, complainant alleged delayed payments on part of accused since 2007 and the outstanding bills of Rs. 27,42,691/, he also referred to statement of accused to complainant to sell the fabric of accused lying with complainant which would be worth Rs.1415 lacs with promise to return the remaining dues, but when the complainant gave letter of sale to accused, accused got annoyed and sent him illegal notice, that no order of dyeing was given by accused and therefore he cannot dye the material lying with him, that two of the cheques given by accused have been dishonoured, and asked accused to take away his fabric and also sent account statement to accused asking him to pay the dues within a week failing which he would sell the fabric and adjust it from the dues and proceed against accused according to law to recover the balance amount.
(d) Then, the accused alleges to have sent a telegram to complainant on 09.04.2009 to intimate him about the stop payment instructions given by him qua his cheques. However, the accused has failed to prove the contents of any such telegram. The complainant has also denied receiving any telegram.
(e) Thereafter, the complainant presented the cheque in issue on 20.04.2009 which was returned dishonoured on the very same day with remarks "Stop Payment".
Digitally signed by AAKANKSHAAAKANKSHA Date:
2023.08.03 16:55:40 +0530 Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Page 24 of 34(f) Then an amount of Rs. 4,20,000/ was credited to the account of complainant firm on 09.05.2009. Although the complainant denied having received such amount, the same stands proved by bank account statement of complainant Ex. DW4/1 filed by the bank witness. The complainant failed to disprove the same. He did not file on record his own bank account statement to disprove the evidence adduced on behalf of accused, despite being crossexamined on the said point.
13.13. Complainant also denied receiving of Rs. 4,50,000/ from accused on 02.05.2008, which has been proved by accused from account statement of complainant Ex. DW4/1. From the sequence of events as narrated hereinabove, it is clear that complainant has been seeking his pending dues from accused, whereas accused has been seeking return of his fabric from complainant. Upon being cross examined, CW1 deposed that he does not have material of accused worth Rs. 33,00,000/, the last transaction with accused took place before April 2009, Radhey Shyam delivered the last goods to manager of accused but he does not remember name of manager of accused or meter of cloth returned. He also deposed that his staff used to deliver the material to accused after dyeing work against receiving. But he failed to place on record any such proof of material returned to accused, despite being specifically crossexamined on this point. His mere deposition that he does not have material of accused with him, gets falsified in view of his admitted letter dated 04.03.2009 sent to accused (Ex. CW1/D1) wherein he has sought confirmation from accused to sell his fabric to recover his outstanding dues. CW1 deposed that Sumant and Radhey Shyam returned the fabric mentioned in Ex. CW1/D1 after 04.03.2009 but did not disclose the date of such return, if any, he also admitted not filing any receiving Ct. Case No. 11472/2019 Digitally signed Shakti Dying Vs. Parmeet Singh Chatwal by AAKANKSHA Page 25 of 34 AAKANKSHA Date:
2023.08.03 16:55:48 +0530 given on behalf of accused for the returned fabric. Even in his reply dated 09.03.2009 (Ex. CW1/D2) he has again directed the accused to take back his fabric and pay his dues failing which he would sell the fabric and adjust the amount from the outstanding dues. CW1 admitted in his crossexamination that the remaining fabric mentioned in Ex. CW1/D2 in para 3 was worth more than Rs. 14,00,000/. Further, the complainant himself has referred to the fabric lying with him stated to be worth Rs. 1415 lacs in his letter dated 04.03.2009 Ex. CW1/D1. In such circumstances, despite CW1 deposing to have always got a receiving from accused at the time of delivery of fabric to accused, nonproduction of any such receipt or proof of delivery of the withheld material to accused and nonexamination of Radhey Shyam and Sumant in his evidence, implies that the complainant has failed to prove that he does not have the fabric of accused. Under Sale of Goods Act, 1930 an unpaid seller does have a right to lien on the goods, but such right exists only in case of him being an unpaid seller. Unpaid seller is defined u/s 45 of Sale of Goods Act, 1930 as under:
The seller of goods is deemed to be an unpaid seller within the meaning of this Act
(a) when the whole of the price has not been paid or tendered;
(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.
The complainant has also referred to the two cheques being dishonoured, in his reply to notice of accused Ex. CW1/D2. and the outstanding dues against accused. However, his right to lien on the fabric of accused arises only if he is able to prove that he was an unpaid seller.
Digitally signed by AAKANKSHAAAKANKSHA Date:
2023.08.03Ct. Case No. 11472/2019 16:55:55 +0530 Shakti Dying Vs. Parmeet Singh Chatwal Page 26 of 34 13.14. But the complainant has failed to bring on record any document whatsoever to prove the outstanding dues against accused, for instance invoices raised, work purchase order, delivery challans, receiving of delivery of product, despite having admitted in cross examination that he has all such documents. CW1 has deposed that the cheque in question was not issued qua a particular bill nut towards the outstanding dues. In such circumstances, the complainant ought to have produced a ledger of the outstanding dues against the accused, when the accused has denied any liability. Only one document i.e. ledger statement Ex. CW1/3 has been filed by complainant. But the accused has been successful in proving that the ledger Ex. CW1/3 filed by complainant is not a true statement. Upon being cross examined, CW1 deposed that statement Ex.CW1/3 was prepared by his accountant Sumant, he did not file statement of account from 01.04.2007 to 31.03.2008, he does not remember whether accounts of accused before 01.04.2008 were cleared or not, the balance payment which was to be made by accused uptil 31.03.2008 is the balance between Mark X1 to X2 in Ex.CW1/3 and it is not a forged document. Admittedly, the said statement is not prepared by complainant and he has failed to examine the maker of the statement without any reasonable justification. A perusal of the statement Ex. CW1/3 would show that it is a statement from 01.04.2008 till 19.03.2009. CW1 deposed that the balance amount of Rs. 5,41,878/ shown from point X1 to X2 is the balance which was to be made by accused till 31.03.2008. The dues against accused as on 19.03.2009 is shown to be Rs. 27,18,646.75/. The cheque in question was presented for payment on 20.04.2009. No statement has been filed by complainant showing dues against accused as on 20.04.2009 i.e. date of presentation of Digitally signed Ct. Case No. 11472/2019 by AAKANKSHA Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date:
Page 27 of 342023.08.03 16:56:02 +0530 cheque in question. Also, the payment of Rs. 4,50,000/ made to complainant duly credited in his account on 02.05.2008 is not reflected in statement Ex. CW1/3 which runs from 01.04.2008 till 19.03.2009. Accused has also denied the genuineness of statement Ex.
CW1/3. The said statement does not bear any proper seal or stamp. The person who has allegedly prepared the said statement has not been examined by complainant. Moreover, the dues shown as outstanding in the said statement does not match with the claim of complainant in his letter dated 04.03.2009. In his letter dated 04.03.2009 (Ex. CW1/D1) complainant has alleged outstanding dues to be Rs. 27,42,691.75/ as on 04.03.2009. However, if the last entry dated 19.03.2009 of Rs. 30,243.20/ is deducted from the total dues of Rs. 27,18,646.75/ from Ex. CW1/3, the dues as against accused prior to 19.03.2009 would be Rs. 26,88,403.75/ (even if the amount of Rs. 4,50,000/ credited to complainant on 02.05.2008 is not taken into consideration). Thus, in such circumstances the dues outstanding against accused as cited by complainant in his letter Ex. CW1/D1 does not even match his own statement Ex. CW1/3. Thus, it is proved that the statement Ex. CW1/3 is not a correct representation of dues outstanding against accused.
13.15. Accused having proved that the statement Ex. CW1/3 is a false document, it was upon complainant to prove that the accused was liable to pay the cheque amount. But CW1 has admitted that he did not file any work order, or any purchase order, or any invoice, or any receipt of delivery of fabric to accused. Although CW1 admitted in his examination in chief that he has all the PO challans, he failed to produce any such challan on record. He also failed to examine his staff and accountant in evidence who used to deal with accused. The Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Digitally signed Page 28 of 34 by AAKANKSHA AAKANKSHA Date:
2023.08.03 16:56:09 +0530 contentions of Ld. counsel for complainant that even if all the payments as stated by accused are admitted, accused has not denied his liability, is not true. The accused has put a suggestion to CW1 that he has no such liability. The accused has also duly crossexamined complainant to prove that he sent notice to complainant to demand return of his goods and promised to pay his outstanding dues if he is given the complete statement. The reply to such letter sent by complainant Ex. CW1/D2 mentions that complainant is sending accused a statement of account of the pending dues. In such circumstances, why did the complainant not file any such statement on record, has remained unexplainable. CW1 has been crossexamined by accused to prove that he had the work orders, the statement, the invoices, the receiving, and also the fabric of accused worth Rs. 14 lacs approximately, but still did not file any on record. The mere fact that accused might have settled the case out of court and issued four cheques to complainant, is not a ground to imply the admission of liability of accused. There is a reason for enactment of Section 81 in Arbitration and Conciliation Act, 1996 whereby the parties are prohibited to rely upon or even introduce in judicial proceedings even the fact that the other party had indicated his willingness to accept a proposal for settlement. It enables the parties to freely enter into any settlement without the risk of it being used against a party in case of failure of settlement. When the accused has categorically denied any dues pending against him and has falsified the only statement filed by complainant Ex. CW1/3, the onus was upon the complainant to prove the correct outstanding dues against accused. These facts coupled with the testimony of complainant wherein he had denied receiving any notice from accused, despite sending reply to the same, him denying having received two payments of Rs. 4,50,000/ and Rs. 4,20,000/ Digitally signed Ct. Case No. 11472/2019 by AAKANKSHA Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date: Page 29 of 34 2023.08.03 16:56:16 +0530 from accused despite bank witness proving such credits in the complainant's account, his statement Ex. CW1/3 not reflecting credit entry of Rs. 4,50,000/, compels this court to observe that the complainant has indeed withheld material facts from the court and has not come up with the truth and thus his testimony is not trustworthy.
13.16. Thus, accused has been able to successfully rebut the presumption of law and discharge the burden of proof by raising a probable defence that he did not have liability to the tune of the cheque amount on the date of its presentation, meaning thereby that the cheque in question was not issued in discharge of his liability.
The first legal requirement is, thus, proved in favour of accused and against the complainant.
14. The second legal requirement is:
"That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier."
The cheque in question Ex. CW1/1 is dated 20.04.2009. The cheque returning memo Ex. CW1/2 is also dated 20.04.2009 which proves that the cheque in question was presented within the period of its validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated in favour of complainant.
15. The third legal requirement is:
Digitally signed by AAKANKSHAAAKANKSHA Date:
Ct. Case No. 11472/2019 2023.08.03 Shakti Dying Vs. Parmeet Singh Chatwal 16:56:23 +0530 Page 30 of 34 "That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and the upon production of such bank memo, the burden shifts upon accused to disprove the same.
It was held in Laxmi Dyechem v. State of Gujarat: (2012) 13 SCC 375 that:
"15. ... We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money .......... is insufficient" appearing in Section 138 of the Act [NI ACT] is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."
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. payment stopped by drawer. As held in Laxmi Dyechem (supra) dishonour of cheque with the remarks "payment stopped by drawer" also fall within Ct. Case No. 11472/2019 Shakti Dying Vs. Parmeet Singh Chatwal Digitally signed Page 31 of 34 by AAKANKSHA AAKANKSHA Date: 2023.08.03 16:56:29 +0530 the offence u/s 138 NI Act and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has admitted his signature on the cheque in question.
Thus, the third legal requirement is adjudicated in favour of complainant.
16. The fourth legal requirement is:
"The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
In the instant case, the cheque in issue was returned dishonoured on 20.04.2009. The complainant sent a legal notice dated 05.05.2009 (Ex.CW1/4) addressed to the accused. Speed post receipt dated 05.05.2009 is also on record (Ex. CW1/5). Thus, it is proved that the legal notice was sent to accused within thirty days of receipt of intimation of dishonor of cheque in issue. On the other hand, accused has denied receiving of any legal notice. But in his statement u/s 313 Cr.P.C. and in his examination, accused admitted that the legal notice bears his correct address except that the floor number of Rajouri Garden address is not mentioned therein. Ld. counsel for complainant has contended that the floor number is also not mentioned in Ex. DW 1/1 by accused himself. The said contention is found to be correct.
Digitally signed by AAKANKSHA Ct. Case No. 11472/2019AAKANKSHA Date:
Shakti Dying Vs. Parmeet Singh Chatwal 2023.08.03 Page 32 of 3416:56:35 +0530 16.1. Even otherwise, law expects a person pleading nonreceipt 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."
16.2. 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 nonservice of demand notice.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
Digitally signedCt. Case No. 11472/2019 by AAKANKSHA
Shakti Dying Vs. Parmeet Singh Chatwal AAKANKSHA Date: Page 33 of 34
2023.08.03
16:56:42 +0530
17. The fifth legal requirement is:
"The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
The fact that accused is precluded from raising the plea of non service of demand notice has been dealt with in para 16 hereinabove. 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.
18. All the legal requirements constituting an offence u/s 138 NI Act being cumulative in nature, the fact that the first legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused Parmeet Singh Chatwal is acquitted for the alleged offence u/s 138 NI Act.
Digitally
signed by
Announced in the open AAKANKSHA
court on 03.08.2023 AAKANKSHA Date:
2023.08.03
16:56:48
+0530
(Aakanksha)
Metropolitan Magistrate(NI Act)07
South West District, Dwarka Courts,
New Delhi
Ct. Case No. 11472/2019
Shakti Dying Vs. Parmeet Singh Chatwal Page 34 of 34