Delhi District Court
M/S.Vintage Credit And Leasing P.Ltd vs Jyoti Sahni on 7 October, 2023
IN THE COURT OF SH AZAD SEHRAWAT, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-007257-2020
CC No. 5863/2020
M/s Vintage Credit & Leasing Pvt. Ltd.
Office at 7/30, West Patel Nagar,
New Delhi-110008
Through its AR Sh. Sanni Gupta
......... Complainant
Versus
Jyoti Sahni W/o Manoj Sahni
r/o H. No. C-9/9, 1st floor, Sector-15,
Near Manav Chowk, Rohini
Delhi-110089
Also at:-
C/oMEC International
Designation : Sales Executive
G-29/9, 2nd Floor, Sector-3,
Near Mother Devine Public School,
Rohini Delhi-110085 .......... Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 13.02.2020
(4) Date of conclusion of arguments : 02.09.2023
M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 1 of 18
(5) Date of Final Order : 07.10.2023
(6) Final Order : Acquitted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant company alleges that it is incorporated under Indian Companies Act, 1956 and vide Resolution dated 01.01.2019, Mr. Sanni Gupta has been authorized by the complainant company to file the present complaint under Section 138 of the NI Act against the accused on behalf of the complainant company. It is alleged that one Sh. Damanjit Singh approached complainant company for taking a loan of Rs. 1,50,000/- and the accused stood guarantor for Sh. Damanjit Singh in the said loan. It is further alleged that the complainant company sanctioned the said loan to the accused vide loan agreement dated 24.04.2017 and it was agreed that the same was to be repaid in 24 equal monthly installments of Rs. 8,738/- each. It is further alleged that the borrower and the accused failed to repay the loan amount on time. It is further alleged that in discharge of his liability, the accused issued one cheque bearing No. 000065 dated 14.12.2019 amounting to Rs. 54,000/- drawn on HDFC Bank Sector-15, Rohini, New Delhi 110085 with an assurance of its encashment. The complainant company presented the said cheque in its account. However, on presentation it was returned/dishonoured vide return memo dated 18.12.2019 due to the reason M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 2 of 18 "Funds insufficient". Thereafter, it was alleged that a legal demand notice dated 10.01.2020 demanding payment of the aforesaid cheque was sent to the accused through speed post dated 13.01.2020 and that despite service of the aforesaid legal demand notice, no money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that the accused be summoned, tried and punished according to law.
3. In its pre-summoning evidence, Sh. Sanni Gupta, AR of the complainant company examined himself on affidavit Ex. CW-1/1 and filed certificate of incorporation as Ex.CW-1/A. He reiterated the contents of the complaint and placed on record copy of board resolution authorizing him to appear as AR for the complainant company as Ex.CW1/B, original cheque in question bearing no. 000065 dated 14.12.2019 as Ex. CW-1/C, bank return memo dated 18.12.2019 as Ex. CW-1/D, legal demand notice dated 10.01.2020 as Ex. CW-1/E, postal receipts dated 13.01.2020 as Ex. CW-1/F (colly) and tracking report is Ex. CW-1/G (colly).
4. Upon appreciation of pre-summoning evidence, the accused was summoned for an offence punishable under Section 138 of the NI Act and notice under Section 251 Cr.P.C. for this offence was framed upon the accused on 18.09.2019 to which the accused pleaded not guilty and claimed trial. Accused admitted her signature on the cheque in question, however, she denied filing in remaining details in the cheque in question. Accused stated that her brother-in-law (husband of her sister) had availed a loan of Rs. 1,50,000/- from the complainant company and that she stood guarantor for the same. Accused also admitted the receipt of the legal demand notice by M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 3 of 18 her. She further stated that she had given the cheque in question as blank signed security cheque to the complainant company at the time of availing the said loan by her brother-in-law. She further stated that her brother-in-law had already repaid 19 installments of Rs. 8,738/- each to the complainant company out of total 24 installments and that thereafter, her brother-in-law could not repay the remaining installments due to financial constraints. She further stated that afterwards she paid two installments of Rs. 8,738/- to the complainant company through cheques bearing no. 000081 dated 17.05.2019 & 000082 dated 11.06.2019. She further stated that she did not owe liability to the complainant company to the tune of cheque in question and that the complainant company did not inform her before presenting the cheque in question in the bank. She also stated that the complainant company has misused the blank signed security cheque in question to institute a false complaint case against her. Thereafter, matter was listed for complainant evidence.
5. Sh. Sanni Gupta, the AR of the complainant company examined himself as CW-1 and he was cross-examined by ld. counsel for the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect on 22.03.2023.
6. Thereafter, statement of the accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused separately to which the accused reiterated the stand taken by her in answer to notice under Section 251 Cr.P.C. In her statement under Section 313 Cr.P.C, the accused stated that she stood guarantor for the loan in question and that she had issued the cheque in question as security to the complainant M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 4 of 18 company. Accused also admitted her signature on the cheque in question, however, she denied filling in all the remaining details. She also admitted receipt of the legal demand notice and stated that she had also replied to the same. She further stated that she was a guarantor for the loan of Rs. 1,50,000/- availed by one Sh. Damanjit Singh from the complainant company, who is her brother-in-law. She further stated that she had given the cheque in question as a blank signed security cheque to the complainant company at the time when loan was availed by Damanjit Singh from the complainant company. She further stated that the loan was to be repaid in 24 installments of Rs. 8738/- each, out of which 19 installments were paid by Damanjit Singh to the complainant company and two installments were paid by her to the complainant company and that total 21 installments have already been paid to the complainant company. Thereafter, she also stated that the complainant company without informing her or the principal borrower, presented her security cheque in question in the bank. She further stated that the complainant company has misused the security cheque to file a false case against her. She also stated that after receipt of the legal demand notice by her, she had approached the complainant company and offered to settle the matter for an amount of Rs. 30,000/-, however, the complainant company did not agree to the said settlement and asked to make complete payment of Rs. 54,000/-. She further stated that she did not owe liability towards the complainant company to the tune of cheque in question. The accused did not prefer to lead defence evidence and the matter was listed for final arguments.
7. It was argued by Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 5 of 18 the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. He argued that the accused has admitted her signatures on the cheque in question in answer to notice under section 251 Cr.P.C and in her statement U/s 313 Cr.P.C. He also argued that the accused has also admitted receipt of the legal demand notice in answer to notice under section 251 Cr.P.C and in her statement U/s 313 Cr.P.C. He further argued that the accused did not bring on record any evidence to show that the cheque in question was given as a blank signed security cheque at the time of disbursal of the present loan and that the same has been misused by the complainant company in the present matter. He also argued that the accused stood guarantor for the principal borrower in the present loan and that this fact has also been admitted by the accused in answer to notice under section 251 Cr.P.C and in her statement U/s 313 Cr.P.C. He further argued that the accused does not have the right to silence and that the accused must disprove the case of the complainant by leading cogent positive evidence. He also argued that there were material inconsistencies in defence version of the accused. It is averred that the accused failed to raise a probable defence to disprove the case of the complainant and to rebut the presumption raised under Section 139 of the NI Act. Therefore, accused be convicted for the offence under Section 138 of the NI Act.
8. Per contra, Ld. Counsel for the accused reiterated the version of the accused in answer to notice under section 251 Cr.P.C and in her statement U/s 313 Cr.P.C. He argued that the accused stood guarantor for her brother-in-law in the loan in question in the present matter and that the principal borrower has already paid 19 instalments out of total 24 instalments of Rs. 8738/- each M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 6 of 18 before the cheque in question was presented in the bank and that this fact has been admitted by the AR of the complainant company in his cross- examination as CW-1. He further argued that the accused, who is a guarantor for the loan in question in the present matter, has also paid 2 instalments of Rs. 8738/- each on 17.05.2019 and on 11.06.2019, that is before presentation of the cheque in question in the bank by the complainant company. He further argued that the aforesaid payment of 2 installments by the accused had also been verified by the AR of the complainant company from the account statement of the accused sent by her in her reply to the legal demand notice before filing the present complaint and that this fact has also been admitted by the AR of the complainant company in his cross-examination as CW-1. He further argued that the complainant company has not endorsed the aforesaid repayment on the cheque in question and that the complainant company has failed to show as to how the accused is liable to pay the amount of Rs. 54000/- mentioned in the cheque in question and in the legal demand notice. He further argued that the complainant has not come to this court with clean hands and therefore the accused is entitled to an order of acquittal in the present matter. He also argued that the accused need not lead defence evidence in order to rebut the presumptions raised under sections 118(a) and 139 of the NI Act and that the same can be done, in exceptional cases, by finding lacunas in the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. It was also argued that evidence of the complainant suffered from material lapses and was not sufficient to establish the case against the accused. He submitted that the complainant has failed to prove his case beyond reasonable doubt and that the accused is entitled to be acquitted of the offence under section 138 of the NI Act.
M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 7 of 18
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let the relevant position of law be discussed first:
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The fact that the accused issued the cheque in question has not been disputed by the accused at any stage of the trial. Moreover, this fact has also been admitted by accused in the notice framed under Section 251 Cr.P.C as well as in her statement under Section 313 Cr.P.C.
12. The NI Act raises two presumptions in favour of the holder of the cheque i.e. the complainant company in the present case; firstly, in regard to the negotiable instrument being drawn or made for consideration as contained in Section 118 (a) and secondly, of the nature referred to in Section 139, a presumption that the holder of the cheque received the same in discharged, in M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 8 of 18 whole or in part, of any debt or other liability.
Section 118 of the N.I Act provides:
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
13. For the offence under Section 138 of the NI Act, the presumptions under Sections 118(a) and Section 139 of the NI Act have to be compulsory raised as soon as execution of the cheque is admitted by the accused or proved by the complainant and thereafter the burden is shifted upon the accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or other liability. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Section 118 and Section 139 of the NI Act are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16]. In this case, the Apex Court had held:
"........ Because both Sections 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,.... 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 introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to 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 M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 9 of 18 the prosecution is obliged to prove the case against the accused beyond 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.
In other words, provided 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" . 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'
14. In the present case, accused has admitted her signatures on the cheque in question, in answer to notice under Section 251 Cr.P.C. and in her statement u/s 313 Cr.P.C. Reference can be made to Judgment of the Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
15. As per the scheme of the Act, on proof of the cheque being signed by M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 10 of 18 the accused, a presumption arises as to the cheque having been issued in discharge of a legal liability, and the burden lies upon the accused to rebut the same. This clearly is an example of the rule of 'reverse onus' in action, where it is incumbent upon the accused to lead what can be called 'negative evidence'. This phrase refers to evidence of a character not to prove a fact affirmatively, but to lead evidence to show non-existence of liability. Keeping in view, that this is a departure from the cardinal rule of criminal jurisprudence of 'presumption of innocence' in favour of the accused, and also keeping in mind that negative evidence is not easy to be led by its very nature, it is now fairly well settled and no more res integra that the accused can displace this presumption on a scale of preponderance of probabilities. 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, to act on the supposition that it does not exist. Simply put, the accused has to make out a fairly plausible hypothesis. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and the evidence adduced by the complainant during trial. Reliance can also be place on the judgement of the Hon'ble High Court of Delhi in S. S. Chouhan Vs. State & Anr. [CRL. L. P. No. 164/2012], which has also been placed on record by Ld. Counsel of the accused, wherein it was held:
"22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 11 of 18 opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
23. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
In light of the legal position discussed above, let us carry out a scrutiny of the evidence led at the trial.
16. The complainant company led its own evidence by way of affidavit testifying that the cheque was issued in discharge of the loan liability. The cheque in question, dishonour memo of the cheque and legal demand notice were placed on record.
17. It is the defence of the accused that she had stood guarantor for the loan in question which was availed by her brother-in-law and that she had issued the cheque in question as a blank signed security cheque to the complainant company at the time of availing the abovesaid loan. She further stated in her notice under Section 251 Cr.P.C and in her statement under Section 313 Cr.P.C that her brother-in-law, who is the principal borrower in the present loan, has already repaid 19 instalments out of total 24 instalments of Rs. 8738/- each and that she has further paid 2 more instalments on 17.05.2019 and on 11.06.2019, that is before presentation of the cheque in question in the bank by the complainant company.
18. It is trite law that offence under Section 138 of the Act can be fastened M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 12 of 18 on an accused only if he commits a default in repayment of the dishonoured cheque which was issued in discharge of a legally recoverable debt. This position of law was also endorsed by the Apex Court in Sasseriyil Joseph Vs. Devassia, SLP (Crl.)1785/2001, DoD 10.09.2001.
19. In the present case, the AR of the complainant company has admitted in his cross-examination that the principal borrower has already paid 20 instalments to the complainant company out of total 24 instalments. However, the AR of the complainant company retracted from the above statement and again said that 20 instalments in total have been received by the complainant company which include the payment of 2 instalments made by the accused as guarantor for the loan in question. He further admitted that the accused had repaid the aforesaid 2 instalments on 17.05.2019 and on 11.06.2019, that is before presentation of the cheque in question in the bank by the complainant company. He also admitted that this fact had been verified by him before filing of the present complaint from the account statement of the accused which was sent by her in her reply to the legal demand notice.
20. In the present case, accused has not disputed the factum of loan of Rs. 1,50,000/- which was availed by her brother-in-law from the complainant company for which the accused stood guarantor. She has also admitted the repayment of 19 instalments by the principal borrower and 2 instalments by her were made to the complainant company, however, she has denied the quantum of outstanding liability towards the loan as 54,000/-. In support of her version, she has relied upon the cross examination of the AR of the M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 13 of 18 complainant company wherein it was admitted that the accused has repaid the aforementioned 2 instalments. She has also relied on her account statement which is placed on record as Ex. CW1/D-4, which shows the aforementioned repayment of 2 instalments by her. She has also relied on the loan statement of account of the principal borrower which is placed on record as Ex. CW1/D-2 which shows payment of 19 instalments by the principal borrower (which includes payment of 1 advance instalment by the principal borrower, which is shown separately on the loan statement of account itself).
21. Perusal of above evidence reveals that the accused and the principal borrower have already repaid an amount of Rs. 1,83,498/- out of total payable amount of Rs. 2,09,712/-. Thus, arithmetically speaking only an amount of Rs. 26,214/- remained pending towards the loan, even as per own case of the complainant. Therefore, the complainant company has failed to show as to how the cheque amount of Rs.54000/- has been arrived at. No record or document showing the same has been brought forth by the complainant. The above factors cast serious doubt on validity of the claim of the complainant. Reference can be made to the judgement of the Hon'ble Supreme Court in Dashratbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel [Criminal Appeal No. 1497 of 2022 (SC)] in this regard in which the Apex Court held as follows:
"Section 56 stipulates that if there is an endorsement on a negotiable instrument that a part of the sum mentioned in the cheque has been paid, then the instrument may be negotiated for the balance."
Section 56 reads as follows:
"Indorsement for part of sum due.- No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 14 of 18 balance."
Section 15 defines the phrase 'indorsement' as follows: "Indorsement.- When a maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the "indorse"."
The Apex court further held in the case of Dashratbhai Trikambhai Patel (Supra) and concluded as follows:
"(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;
(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;
(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said amount of money' has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided."
Therefore, in light of the above discussions it can be safely inferred that the accused has discharged the onus of proof put upon him by virtue of the presumptions raised under Section 118 (a) and Section 139 of the NI Act.
22. The accused has also denied the receipt of the legal demand notice. However, it is worth noting that the address of the accused as mentioned in legal demand notice is the same address as that mentioned in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C, her M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 15 of 18 testimony as DW-1 and her bail bonds, i.e., C-9/9, 1 st floor, Sector-15, Near Manav Chowk, Rohini, Delhi-110089. Moreover, the accused has not brought on record any evidence to show that she was not residing at above address at time of service of the legal demand notice. The above shows that the legal demand notice was sent at the correct address of the accused. Once the notice is proved to be sent by post to the correct address of the accused, then the presumption under section 27 of The General Clauses Act, 1897 arises and it shall be presumed, unless contrary is proved, that the notice sent to address of the accused was delivered to him/her. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on the correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service of the legal demand notice upon her.
23. Moreover, as per the dicta of the Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, if the accused did not receive the legal demand notice, he/she could have made payment of the cheque amount within 15 days of receipt of the summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by the accused. Hence the defence of non-service of legal demand notice is without any substance.
24. In light of the above facts and circumstances, the accused has probabilized his defence by punching holes in the case of the complainant and has discharged the onus of proof put upon her by virtue of the M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 16 of 18 presumptions raised under Section 118 (a) and Section 139 of the NI Act. The case of the complainant is not made out as they have not been able to justify as to how the cheque amount was arrived at. The complainant did not place on record the vital documents such as the loan agreement in order to show calculation of dues from him and to show that the same are as much as the amount mentioned in the cheque in question. This fact was fatal to the case of the complainant. There is no cogent evidence produced by the complainant to substantiate his version regarding settlement of loan for the cheque amount.
25. In order to rebut the presumption of Section 139 of the Act, the accused is not required to bring direct evidence but should adduce sufficient cogent evidence or he/she can rely upon the circumstances which shows the probability of non-existence of the consideration for the same. Accused has to prove his defence on the scale of preponderance of possibilities, as has been held in Kumar Exports v. Sharma Carpets (supra). In present matter, from the case of the complainant itself, the accused has been able to raise a reasonable probable defence and has been able to rebut the presumptions under sections 118(a) and Section 139 of the NI Act and the reverse onus cast upon her has been discharged.
26. Since the accused has rebutted the statutory presumptions, the onus again shifts back upon the complainant. Now the presumptions under Sections 118 and 139 of the NI Act will not again come for the rescue of the complainant and the case of the complainant has to stand on its own legs. In the instant case, the complainant has failed to discharge the burden of proof and could not prove the case beyond reasonable doubt.
M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 17 of 18
27. Accordingly, the accused Jyoti Sahni W/o Manoj Sahni is acquitted in the present case for the offence under Section 138 of Negotiable Instruments Act, 1881.
ANNOUNCED IN THE OPEN COURT ( AZAD SEHRAWAT)
TODAY i.e. 07.10.2023 METROPOLITAN MAGISTRATE
DWARKA COURTS/ DELHI
M/s Vintage Credit & Leasing Pvt. Ltd. vs. Jyoti Sahni CC No. 5863/2020 Page no. 18 of 18