Delhi District Court
Smt.Anita vs Padam Singh on 2 July, 2018
IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
New CC No. 7198/15
Unique case ID No. 4989188/16
Under Section 138 of N.I. Act
In the matter of:
Smt. Anita
w/o Late Shri Rajpal
R/o House no.K-34,
Shiv Vihar, Prem Nagar,
Najafgarh,
New Delhi
... Complainant
Versus
Padam Singh
s/o Shri Diwan Singh
R/o VPO Daultabad,
District Gurgaon,
Haryana
... Accused
Date of Institution : 24.06.2015
Date on which judgment was reserved : 02.06.2018
Date of Judgment : 02.07.2018
JUDGMENT
1. Shorn off unnecessary details, the case of the complainant as narrated in the complaint is that the accused is known to the complainant for the last many years. It has been averred by the complainant that on 20.12.2014, the complainant took her committee and on the same day, the accused requested the complainant for a friendly loan of Rs. 3,25,000/-. Acceding to the request of the accused, keeping in view the friendly relation, New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH the complainant gave a sum of Rs. 3,25,000/- to the accused on 20.12.2014 itself. It is the case of the complainant that to discharge his liability to re-pay abovesaid friendly loan, the accused issued one cheque bearing no. 007704 dated 22.05.2015 for sum of Rs. 3,25,000/- drawn on Oriental Bank of Commerce, New Railway Road, Gurgaon Branch, Haryana (hereinafter called as 'cheque in question') to the complainant and assured the complainant that the cheque shall be honoured at the time of its presentation. The complainant presented the cheque in question for encashment on 23.05.2015 which to the despair of the complainant, got dishonoured on presentation with the remarks ''Funds Insufficient'' vide cheque return memo dated 25.05.2015 (Ex.CW1/B). Thereafter, the complainant immediately contacted the accused, however, on one pretext or the other, the accused started to avoid the complainant. This constrained the complainant to send a legal notice dated 01.06.2015 (Ex.CW1/C) to the accused, which was duly served on the accused. For the same, the complainant has filed a tracking report (Ex.CW1/E). The said legal notice went unheeded and this led to the filing of the present case.
2 Cognizance of the offence under Section 138 NI Act was taken against the accused and summons were issued. The accused entered appearance. Notice under Section 251 CrPC was framed against the accused to which he pleaded not guilty. In her plea of defence, recorded on 28.09.2015, accused denied the factum of issuance of cheque in question to the complainant and that of taking of any loan. It was the defence of the accused New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH that the cheque in question was issued by the complainant to one Mr. Jai Karan, who was running a committee and the accused was the member of such committee. The accused submitted that he had handed over the cheque in question, after appending his signatures and writing the date on the same, to the said Jai Karan. The accused further submitted that he is unaware as to how the complainant got possession of cheque in question and that the same has been misused by the complainant. However, the accused admitted that he had received the legal demand notice sent by the complainant.
EVIDENCE OF THE COMPLAINANT
3. In Post Summoning Evidence, the complainant chose to examine herself as CW1 and adopted her Pre-Summoning Evidence. The accused had filed an application under Section 145(2) NI Act and the accused was allowed to cross examine the complainant. However, nothing substantial could be elicited from the cross examination of the complainant which could support the defence of the accused or create doubts on the credibility of the witness. In his cross examination, the complainant admitted that on an average she receives sum of around Rs.15,000/- on behalf of her husband and she also receives commission from LIC as she is an LIC agent and the said sum of Rs.15,000/-, which she receives as commission. The complainant testified that she knows the accused through her husband. The accused had came to her house for the first time with her husband and she knows him for the past 6-7 years. In her cross-examination, the complainant also admitted that the entire loan amount of New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH Rs.3,25,000/- was advanced, in cash. The complainant denied the fact that she is having any acquaintance with any person having name of Mr. Jai Karan. As per the version of the complainant, the accused had taken loan as the accused required the same for starting an ice-cream factory. The complainant also admitted at the time of handing over of the loan amount, no written document were executed between her and the accused.
4. The complainant chose to examine one Sh.Ram Narayan Yadav, who is her neighbour as CW2. CW2 deposed that the accused had received sum of Rs.3.25 lacs, in cash, from the complainant in his presence and the cheque in question was also handed over by the accused to the complainant in his presence. In his cross examination, the said witness testified that the loan transaction took place at around 1:00 to 1:30 PM and the cheque in question was completely filled at the time when it was handed over to the complainant.
5. The complainant also chose to examine his son namely Mr. Monu @ Vikas as CW3. CW3 deposed that the accused used to come to their house with his father and that he had taken loan of Rs.3.25 lacs from his mother. The said witness testified that accused had filed a complaint against him and his mother (complainant) with local police and in the said complaint, the accused had admitted that he had taken loan from the complainant. The copy of the said complaint has been exhibited as Mark 'X'. In his cross examination, the witness testified that the loan transaction took place in noon hours of the day and that no written document/receipt was executed between the parties at New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH the time of advancement of loan. It was further testified by him that at the time of advancement of loan, the accused had given photocopy of his driving licence and his Voter ID Card.
DEFENCE OF THE ACCUSED 6 The version of facts as discernible from the plea of defence recorded at the stage of framing of notice under Section 251 CrPC, from cross-examination of complainant CW1, from statement of accused recorded under Section 313 CrPC and from the testimony of the accused (DW1) are that the accused has denied the factum of taking of any loan from the complainant. The version of the accused is that the cheque in question was given to one Mr. Jai Karan as security. The accused has denied that the cheque in question is filled in his handwriting. It was the version of the accused, during his testimony as DW1 that he had not received the legal demand notice sent by the complainant and that he had got information regarding the fact of dishonour of the cheque in question, when he had received summons from the court.
7. The accused in his testimony as DW1, has deposed that the complaint which has been brought on record by CW3 and has been exhibited as Mark 'X', does not bear his signatures. The accused has deposed that he is not having any acquaintance with the complainant. The accused has testified that he last met Jai Karan in February 2015 and he had not filed any complaint against the said Jai Karan for the misuse of the cheque, prior to the filing of the present complaint. However, he New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH has filed a complaint against Jai Karan on 16.04.2016 at PS Najafgarh.
8. The accused chose to examine one Shri Mukesh Mittal, Director of M/s KND Infrastructure Pvt Ltd as DW2. The said witness deposed that the accused was his employee for a brief period. The said witness has brought on record copy of the attendance register for the month of December 2014. The same has been exhibited as Ex.DW2/1 to show that on 20.12.2014, the accused was on his duty as his signatures are there on the attendance register. However, DW2, in his cross-examination, admitted that the accused used to leave office after appending his signature on the attendance register in the morning and the accused was not available in office premises during the office hours as he was working for marketing department and he used to come back to office in the evening hours.
9. The factual position being thus, now let us quickly run through the legal benchmark which is to be satisfied in order to constitute an offence u/s 138 NI Act-:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) that a cheque should have been issued for discharge, in whole or in part, or any debt or other liability.
(iii) that the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier.New CC No. 7198/15 Unique case ID No. 4989188/16
SMT.ANITA VS PADAM SINGH
(iv) that cheque is returned by the bank unpaid 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.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said 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.
10. Being cumulative, it goes without saying that it is only when, all the aforementioned ingredients are satisfied, that a person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
11 On analysis of the facts and the legal position stated above, the court finds the parties to be at variance on two primary issues. The first being that whether the legal notice was validly served on the accused as per the mandate of Section 138 NI Act and whether the cheque in question was issued by the accused to discharge her liability to repay the loan amount of Rs.3.25 lakhs to the complainant.
12. File perused and submissions heard. Let us New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH determine, whether the accused has succeeded in establishing various defences taken by him.
SERVICE OF LEGAL DEMAND NOTICE
13. Let us begin by examining first, the much hackneyed and cliched defence of non service of legal notice. It is pertinent to mention here that at the stage of recording of plea of defence, the accused had admitted that he had received the legal demand notice sent by the complainant. However, at the stage of recording his statement under section 313 CrPC, and at the stage of defence evidence, when the accused appeared as DW1, the accused somersaulted and denied the receipt of legal demand notice sent by the complainant. This defence of the accused has to fail for more than one reason. Accused has denied the service of legal notice, but quite notably, has not disputed the correctness of his address as appearing on the legal notice. This address on the legal notice once having been shown to be correct address of the accused and the legal notice having been dispatched by registered post, a presumption of due service arises (in view of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act) and now it was incumbent on the accused to lead evidence to prove that the notice was not served on him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. A mere denial of the service of legal notice would not ipso facto rebut the presumption of due service. In any event, in view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. The relevant extract of the decision deserves to be quoted in extenso :-
''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 Act, make payment of the cheque amount and submits 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 alongwith 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. In our view, any other New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH interpretation of the proviso, would defeat the very object of the legislation''.
14. The non service of legal notice challenge having been met, let us now turn to the core issue in this case and examine ''whether the cheque in question can be said to have been issued in discharge of legal liability or not''.
EXISTENCE OF LEGALLY ENFORCEABLE DEBT OR LIABILITY.
15. Let us briefly recapitulate that the accused has admitted that the cheque in question bears his signature. However, in the same breath, the accused's defence is that he had issued the cheque in question to one Jai Karan and not to the complainant. Therefore, once the accused admits that the cheque in question bears his signature and the cheque in question is drawn on a bank account maintained by him, a factual basis is established, to invoke the presumption of cheque having been issued in discharge of a legally sustainable liability and drawn for a good consideration arises by virtue of Section 118 (a) read with Section 139 of NI Act.
16. It is an established proposition of law 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 139 NI Act has to be raised in favour of the complainant. It is a mandatory presumption though the accused is entitled to rebut the said presumption. In a catena of judgments, it has been laid down by the Hon'ble Apex court that such presumption in favour of the complainant cannot New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH be rebutted by a mere plausible explanation but more than a plausible explanation by way of rebuttal evidence.
17. In my opinion, the accused has not succeeded in rebutting the presumption of legal liability or even probablizing his defence. The defence of the accused is that the cheque in question was issued by him to one Mr. Jai Karan. However, the accused has failed to examine the said Mr. Jai Karan as a witness, who could have been the best witness to prove the story, so propounded by the accused. It is pertinent to mention here that though the accused had mentioned the name of Mr. Jai Karan in the list of witnesses on behalf of the defence and had requested the court to issue summons against Mr. Jai Karan. However, the summons which were issued against the said proposed witness were received back unserved with the report that ''No person by the name of Jai Karan was residing at the address furnished by the accused''. On the other hand, Ld. Counsel for the complainant has submitted that no person by name of Jai Karan is in existence as has been stated by the accused but, in order to save himself, from possible conviction, the accused has introduced a fictitious person by the name of Jai Karan. In my opinion, the accused ought to have known the correct address of Jai karan, had he handed over the cheque in question to the said Jai Karan. Therefore, non examination of Mr. Jai Karan, who was the best witness to depose in favour of the accused is fatal to the defence taken by the accused.
18. At the stage of final arguments, it was argued on behalf of the accused that the accused could not have been New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH present at the house of the complainant as he was on his job. It has been contended on behalf of the accused that this fact has been proved by the accused through the examination of DW2. This argument of Ld. Counsel for the accused is specious as a careful scrutiny of testimony of DW2, shows that he had deposed that though the signatures of the accused were appended on the attendance register, however, in his cross-examination, the witness has testified that the accused was in marketing job and therefore after appending his signatures, the accused used to leave the office and would return back in the evening hours. In view of the same, it cannot be held that the accused could not have been present at the house of the complainant as has been argued on behalf of the accused.
19. At the stage of final arguments, it was also argued on behalf of the accused that the entire loan amount has been alleged to have been handed over to the accused in cash and the same was handed over without execution of any document / agreement between the parties and this in itself is sufficient to create doubts on the story of the advancement of alleged loan propounded by the complainant. The argument of Ld. Counsel for the accused is specious as the complainant as examined witnesses in whose presence, the alleged loan was handed over to the accused, in cash. It is pertinent to mention that the complainant has examined one Shri Ram Narain Yadav, who is an independent witness and the said witness has categorically testified in his cross-examination that the complainant had given sum of Rs.3.25 lacs in cash to the accused. At the same time, the said witness has also testified that the cheque in question was New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH handed over to the complainant in his presence, by the accused himself and the cheque was duly filled up at that time. Despite cross-examination, nothing could be elicited from the witness, to discredit his testimony. Therefore, the fact that loan amount of Rs.3.5 lacs was indeed advanced to the accused has been successfully proved by the complainant.
20. At the same time, a perusal of the complaint filed by the accused against CW3 and the complainant which has been exhibited as Mark 'X', further fortifies the conclusion that the complainant had indeed advanced the loan of Rs.3.5 lacs. Perusal of the complaint dated 25.05.2015 (Mark 'X') which was filed by the accused with police station Rajender Park, Gurgaon, Haryana. In the said complaint, the accused had himself admitted that he had taken loan of around Rs.3 lacs from the complainant. Though, the accused has denied his signatures on the said complaint (Mark 'X'), however, he has failed to bring on record any evidence to show that the said complaint is a forged or fabricated document.
21. Ld. Counsel for the accused has prayed for acquittal of accused on the ground that there are material contradictions in the version of events deposed by complainant's witnesses. It has been argued on behalf of the accused that the complainant, CW1, has deposed that loan in question was advanced on 20.12.2014, in evening hours at about 7-8 p.m. However, on the other hand, CW2 has deposed that the loan in question was advanced to the accused by the complainant at around 1-1.30 pm. Therefore, in view of the contradictions, it has been vociferously argued on New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH behalf of the accused that the testimony of the witnesses cannot be relied upon and the testimony deserves to be dismissed at the threshold. In my opinion, this argument of Ld. Counsel for the accused is devoid off merits as it is a settled law that only material contradictions can form a basis to disbelieve the testimony of a witness. In the present case, the contradictions, which have been pointed out by Ld. Counsel for the accused does not go to the root of the matter and therefore, the contradictions cannot be termed to be 'material contradictions', warranting the testimony of complainant's witness to be eschewed from consideration.
22. At the stage of final arguments, Ld. Counsel for the accused has disputed the identity of the complainant and has argued though the payee of the cheque in question, is ''ANITA'', however, the complaint has been filed by one Smt. Anita w/o Late Rajpal. Therefore, it has been contended on behalf of the accused that there is a doubt regarding the identity of the complainant in the sense that the complainant ''Anita'' is not the payee of the cheque, ''Anita'' in whose favour the cheque in question was issued. In my opinion, this argument so advanced by Ld. Counsel for the accused is frivolous and ought to be dismissed at the threshold. During the entire trial i.e. from the stage of framing of notice till the stage of conclusion of defence evidence, no such objection was ever taken by the accused and it was during final arguments that for the first time, the accused disputed the identity of the complainant. It is a settled law that any objection, if not taken at the relevant time, such objection is deemed to have been waived off. In the present case, during the cross-
New CC No. 7198/15 Unique case ID No. 4989188/16SMT.ANITA VS PADAM SINGH examination of the complainant (CW1), no such objection or suggestion was ever put to the complainant and therefore, the accused cannot be allowed to take such frivolous objections at the fag end of trial.
23. As a last ditch effort, Ld. Counsel for the accused has argued that the complainant has admitted in her cross examination that the alleged loan was given in cash and the same has not been disclosed by her in her income tax returns, and therefore, the same cannot be termed as legally enforceable debt in view of the bar of section 269 S.S. of the Income Tax Act, 1961.
24. This argument advanced by Ld. Counsel for the accused is devoid off merits as it is a settled law that even if, the loan amount has not been disclosed by any person in his / her income tax returns, the same would be inconsequential. It is now fairly settled that the mandate of section 269 S.S. of the Income Tax Act extends only to the taker or receiver of the loan and not the giver. A bare perusal of section 269 S.S. of the Income Tax Act, 1961 shows that no person can accept any loan or deposit of Rs.20,000/- or more otherwise then, by way of an account payee cheque or an account payee draft.
25. Consequences of contravention of section 269 S.S. of the Income Tax Act have been provided in section 271 D of Income Tax Act, 1961, which provides, that if, a loan or deposit is accepted in contravention of provisions of section 269 S.S. of the Income Tax Act, then a penalty equivalent to the amount of such New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH loan, or deposit may be levied by the Joint Commissioner. Hence, even on a bare reading of these provisions, it is manifest that the bar relates to the receiving or taking of loan and not giving the same.
26. This aspect is very succinctly highlighted by Hon'ble High court of Bombay in the decision tilted as 'Krishna P. Morajkar vs. Joe Ferroa' decided on 19.07.2013, 2013 SCC online Bombay 862, which reads as follows:
''18. The Ld. Counsel for the respondent submitted that the observations of the Supreme Court in para 14 of the Judgment in Rangappa (supra) shows that the Supreme Court had not in any way casts any doubt on the correctness of the decision in Krishna Janardhan Bhat (supra), as it was based on specific facts and circumstances therein. Therefore, he submitted that observations in Krishna Janardhan Bhat (supra), about non-compliance of provisions of section 269 S.S. of the Income Tax Act and implications of section 271 D of Income Tax Act would still stand as good law. The Ld. Counsel for the appellant submitted that even these observations would stand impliedly over ruled. He pointed out that what was held in Krishna Janardhan Bhat (supra), was that advance taken by way of loan of more than Rs.20,000/- was only to be made by way of an account payee cheque. He submitted that in Rangappa (supra), the Supreme Court was specifically considering the case of an advance of New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH Rs.45,000/- made in cash and yet the Supreme court had upheld the conviction recorded. Thus, even those observations based on the provisions of section 269 S.S. and section 271 D of the Income Tax Act made in Krishna Janardhan Bhat (supra), would stand impliedly overruled. I am entirely in agreement with Ld. Counsel for the appellant because the Supreme court in Rangappa (supra) had specially noted the judgment in Krishna Janardhan Bhat (supra), that advance of more than Rs.20,000/-
was to be made only by way of an account payee cheque, and yet the Supreme Court accepted the case of the complainant who claimed to have made an advance of Rs.45,000/- in cash and proceeded to uphold the conviction, even though the case rested on the fact that the cash advance of sum more than Rs.20,000/- was made. Thus, on this aspect, also, Krishna Janardhan Bhat (supra), stood impliedly overrule by Rangappa (supra), and the Judgment is to be held rendered on the facts of that case, not laying down the law. Therefore, judgments, which follow Krishna Janardhan Bhat (supra), can be safely ignored.
19. There is another aspect of the matter. The Ld. Counsel for the respondent pointed out that in Krishna Janardhan Bhat (supra), attention of the Supreme Court was possibly not drawn to the actual wording of section 269 S.S. of the Income Tax Act. He submitted that New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH section 269 S.S. of the Income Tax Act, in fact, does not cast any burden upon a person making advance in cash to record it in his returns and does not prevent any such cash advanced from being made. ........................''.
A plain reading of section 269 S.S. shows that no person can accept any loan or deposit of a sum of Rs.20,000/- or more otherwise then by way of an account payee cheque or account payee draft. It does not say that a person cannot advance more than Rs.20,000/- in cash to other person. It is clear that the restriction on cash advances was infact on the taker and not the person who makes the advance. The penalty for taking such advance or deposit in contravention of provisions of section 269 S.S. was to be suffered by the one who takes the advance. Therefore, it is obviously impermissible to invoke these provisions for preventing a person from recovering the advance which he has made..............''.
27. It is clear from the above that non disclosure of an advance would not make the same non recoverable as it is incumbent on the person taking the advance to disclose the loan and not the person giving the same.
28. What further fortifies this conclusion is the decision of Hon'ble High court of Delhi in the case of Mukesh Gupta vs P. K. New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH Bajaj, CS (OS), number 1615/2003 decided on 20.11.2006, wherein the court, in a civil suit for recovery, quite categorically held, that even assuming a non disclosure in tax returns, merely that, would not render the contract of loan void and loan irrecoverable relevant excerpts from the decision are as follows:-
''36. On issue no.02 framed vide order dated 02.02.2006, suffice would it be note as held in report published as 2002 (8) SCC 31, Nutan Kumar & Ors vs Iind Additional District Judge & Ors., unless a statute specially provides that a contract contrary to the provisions of the statute would be void, the contract would remain binding between the parties and can be enforced between the parties themselves. Consequences, if any, other in law, would follow.
''37. The Ld. Counsel for the defendant could not show any statutory provisions under the Income Tax Act, 1961, or any other law which stipulates that a loan transaction not recorded in the Income Tax Returns, or a loan transaction which is in violation of section 69A, 69B or section 269 S.S. of the Income Tax Act, would be void.
38. I accordingly hold that the suit is not barred under section 69A, 69B or section 269 S.S of the Income Tax Act.....''.
29. It is, therefore, clear that the claim does not become irrecoverable on account of alleged violation of section New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH 269 S. S. of the Income Tax Act. On the other hand, it was for the accused to justify as to whether he had disclosed the same to the income tax department or not.
30. Thus, the sheer lack of even an iota of material on record, to support the defence of the accused, leads to the irresistible conclusion of the defence of the accused being sham and nothing but a cock and bull story.
31. Furthermore, it has already been proved on record that the legal notice was validly served on the accused. The non reply of the legal notice, is also circumstances that is to be marshalled against the accused. The conduct of the accused in not taking any legal action against the said Jai Karan, prior to the filing of the present case, reeks of culpability and an adverse inference deserves to be drawn against him.
32. Therefore, all factors, cumulatively seen, go on to show that the accused has miserably failed to probablize the defence set up by him with respect to the cheque in question amounting to Rs.3.25 lacs (Ex.CW1/1). The presumption of legal liability under Section 118 (a) read with Section 139 of the NI Act has gone unrebutted. The complainant has successfully proved the basic ingredients of the offence under Section 138 of the NI Act.
33. Resultantly, the accused Padam Singh stands convicted for the offence under Section 138 of the NI Act.
New CC No. 7198/15 Unique case ID No. 4989188/16SMT.ANITA VS PADAM SINGH
34. Let the convict be heard on quantum of sentence.
35. Let a digitally signed copy of the Judgment be supplied to the accused, free of cost and a copy of the same be placed on record. Digitally signed by PUNEET NAGPAL PUNEET Date:
Decided on 02.07.2018 NAGPAL 2018.07.02 16:34:32 Announced in open court. +0530 (PUNEET NAGPAL) MM (NI Act)-01/SW/DWK New Delhi New CC No. 7198/15 Unique case ID No. 4989188/16 SMT.ANITA VS PADAM SINGH