Delhi District Court
(A) Madan And Company vs . Wazir Jaivir Chand on 22 June, 2012
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO: 933/11
Unique Case ID No: RO738672009
M/s GE Capital Services India
through Sh. Atul Bansal, authorized Representative
AIFCS Building, 1, Rafi Marg
New Delhi-110001 and
Branch Office at Saket
New Delhi-110017. ..............Complainant
Versus
Ajayveer Solanki
WZ-17, Asalarpur
Janak Puri, Delhi-110058 ................Accused
Date of filing : 03.11.2009
Date of Institution : 07.11.2009
Offence Complained of or proved : Under section 138 of
Negotiable Instruments Act,
1881
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 31.05.2012
Final Order/Judgment : Acquitted
Date of pronouncement : 22.06.2012
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 1 of 23 the Negotiable Instruments Act filed by M/s GE Capital Transportation Financial Services Ltd. against the accused.
2. The case of the complainant as per the complaint is that the complainant is a public limited company registered under the Indian Companies Act, and is engaged in the business of financing, leasing, hire-
purchase inter-alia of transport vehicles and the accused had approached the complainant for the finance of a vehicle on hire purchase basis and consequentially various documents were executed by the accused in favour of the complainant company including inter-alia the agreement bearing no. TNGURSCEZ00319152. It is further the case of the complainant that towards part discharge of the aforesaid liability the accused gave to the complainant at par cheque bearing no. 131435 dt. 15.06.2009 for a sum of Rs. 59,525/- drawn on Standard Chartered Bank, B-1/517, Janakpuri, New Delhi-110058 which was presented by the complainant in its bank account no. 7152027 in Citi Bank NA, Jeevan Bharti Building, 4th Floor, Sansad Marg, CP, New Delhi-1, which was dishonoured by the banker of the accused vide return memo with the remarks 'Account Closed'. Thereafter, the complainant had served upon the accused a legal notice demanding the GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 2 of 23 payment of cheque amount in question in terms of provisions of Negotiable Instrument Act and since the accused had failed to make the payment even after expiry of 15 days of receipt of the notice, the complaint was filed by the complainant under Section 138 of Negotiable Instruments Act through Shri Atul Bansal, Authorized Representative of the complainant.
3. The accused was summoned vide order dated 09.12.2009, whereupon the accused entered his appearance on 01.03.2011 and was enlarged on bail. Thereafter, separate notice u/s 138 of the NI Act was issued to the accused on 03.12.2011, to which he did not plead guilty and claimed trial. Thereafter, on 09.12.2011 the accused moved an application u/s 145(2) of the NI Act seeking permission to cross examine the complainant's witness which was allowed vide order dated 01.03.2012. Thereafter, on 23.03.2012 an application for change of name of the complainant consequent upon amalgamation of M/s GE Capital TFS Ltd. With M/s GE Capital Services India was moved on behalf of the complainant and the same was allowed after hearing both the parties and thereafter fresh post summoning evidence by way of affidavit was filed by AR of the complainant who was examined and duly cross examined by ld. Counsel for the accused. Complainant has GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 3 of 23 relied upon the following documents in the aforesaid affidavit Ex.CW1/1. EX.CW1/A1: Copy of power of attorney dated 22.12.2009 in favour of the AR of the complainant.
EX.CW1/B: Original cheque bearing no. 131435 dt. 15.06.2009 for a sum of Rs. 59,525/- drawn on Standard Chartered Bank, B-1/517, Janakpuri, New Delhi-110058 in favour of the complainant.
EX.CW1/C: Dishonour memo dated 29.08.2009 in respect of aforesaid cheque.
EX.CW1/D: Copy of Legal demand notice dated 18.09.2009. EX.CW1/E (colly): UPC as well as Postal receipt dated 22.09.2009 along with acknowledgment card.
Ex. CW 1/F: Complaint u/s 138 of NI Act.
4. Thereafter, vide separate statement of AR of the complainant, CE was closed on 23.03.2012 and the matter was fixed for SA. Accused was examined under Section 313 Cr.P.C on the same day and the matter was fixed for defence evidence. Accused has examined himself as DW1 after moving an application u/s 315 of Cr.P.C. After the accused was duly cross GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 4 of 23 examined by ld. Counsel for the complainant, on a separate statement of accused DE was closed and the matter was fixed for final arguments.
5. Final arguments in the case were heard on 02.04.2012, 28.04.2012, 09.05.2012 and 31.05.2012 respectively. Besides, written submissions have been filed by both the parties.
6. It is submitted by ld counsel for complainant that the accused has admitted his signatures on the cheque in question and therefore, in view of provisions of section 118(a) and 139 of the NI Act, there arises a presumption in favour of the complainant that the cheque was issued by the accused in discharge of his liability towards the complainant. According to him the complainant has not even denied the execution of collateral agreement bearing no.TNGURSCEZ00319152. It is further submitted by him that the accused has failed to rebut any of the aforesaid presumption even by preponderance of probabilities and since despite the service of legal notice the accused has failed to make the payment towards cheque amount in question, he is liable to be convicted u/s 138 of NI Act. According to him, only defence sought to be raised by the accused that the liability of the accused had ceased immediately on repossession of the vehicle by the GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 5 of 23 complainant, is not sustainable in view of the fact that as per the terms and conditions of the agreement the complainant was entitled to recover the overdue installments from the accused even after the repossession of the vehicle. It is further submitted by him that even the stand taken by the accused that legal notice was never served upon him due to the incorrect address mentioned in the same is liable to be dismissed in view of the fact that legal notice was sent to the accused on the address furnished by him to the complainant at the time of the execution of loan agreement and moreover the non bailable warrants against the accused were issued by this court on the same address and it is the admitted case of the accused that he has appeared in the court on receipt of the intimation from the police officials about issuance of NBW's against him. Besides, it is further submitted by him that the accused has further failed to lead any evidence in support of his submissions that resale value of the vehicle as on the date of repossession was Rs.15 lacs approximately and the Xerox copy of insurance cover note purportedly issued by Bajaj Alliance Motor Insurance Co. has no evidentiary value. Ld. Counsel for the complainant has relied upon the following judgments in support of aforesaid submissions. GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 6 of 23
(a) Madan and Company vs. Wazir Jaivir Chand
(c) National Forensic India Ltd vs. Devender Malviya
(d) Delhi State Industrial Development Corporation Ltd vs. J.K. Synthetic Ltd.
(e) Union of India vs. Naresh Kumar, Sarasu
(f) Panneriam @ Pachamuthu, Perumal and Manu vs. Ramaswamy (Madras High Court).
In view of the above submissions, it was prayed by ld. Counsel for complainant that since the complainant has proved all the ingredients of offence u/s 138 of the NI Act, the accused be convicted for the said offence and may be punished accordingly.
7. On the other hand, it is submitted by ld. Counsel for accused that the complainant has failed to prove any of the ingredients of section 138 of the NI Act in as much as the complainant has not led any evidence to show that the cheque was issued by the accused in favour of the complainant in discharge of any legally enforceable debt or liability despite the fact that the accused has successfully rebutted the presumptions u/s 118(a) and u/s 139 of the NI Act by bringing on record the admission by the complainant that the vehicle had already been repossessed by the complainant prior to presentation of cheque in question and the cheque was given by the accused GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 7 of 23 to the complainant as post dated cheque at the time of execution of loan agreement. It is further submitted by him that the complainant has further failed to prove service of legal notice upon the accused in as much as the address mentioned in the aforesaid legal notice does not exist in Delhi and admittedly the AD Card does not bear the signatures of the accused. It is further submitted by him that the present complaint is even otherwise not maintainable in view of the fact that the complainant has failed to place on record any document to show that the complainant company was licensed to grant loan to the general public and Mr. Atul Bansal is the duly Authorized Representative of the company to prosecute the present complaint. It is further submitted by him that the execution of power of attorney in favour of alleged AR of the complainant has not been properly proved by the complainant and moreover the presumption u/s 85 of Indian Evidence Act is not available to the complainant as the power of attorney has not been executed before the notary public. Thus, according to him, in the absence of proof of any board resolution in favour of the alleged executant of the power of attorney, Mr. Atul Bansal cannot be said to be authorized representative of the complainant even if the execution of the same by Mr. Nishant Singh is GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 8 of 23 admitted. Ld. Counsel for the accused has relied upon the following judgments in support of aforesaid submissions made by him.
(a) Thakurlal v. Ramadhar (1996 ALJ 480)
(b) M/s Shakti Finance Ltd. v. K.Selvaraj {2011 ACD 707 (MAD)}.
(c) EPC Industries Ltd. v. State of Maharashtra & Ors {2009 (2) DCR 36}.
(d) M/s Balaji Agencies P. Ltd., Goa V. M/s Samudra Ropes P. Ltd. Goa & Ors {2011 ACD 359 (BOM)}.
(e) Chicho Ursula D'Souza v. Goa Plast Pvt. Ltd. (2009 (1) DCR 690 Bombay High Court).
(f) Roy Joseph Creado & Ors Vs. S.K. Tamisuddin & Ors {2011 ACD 1350 (BOM)}.
(g) VPK Urban Cooperative Credit society Ltd. v. Shaikh Rucnoddin Mohammed & Anr {2011 ACD 53 (Bom)}.
(h) Smt. Nanda Vs. Nandkishore (2010 (1) DCR 618)
(i) Ramkrishna Urban Cooperative Credit Society Ltd. v. Rajendra Bhagchand Warma
(j) Bashir Ahmad MIR Vs. Abdul Ahad Ganai {2009(2) DCR 692}.
(k) Amzad Pasha Vs. H.N. Lakshmana {2011 ACD 365 (Kant)}.
(l) Ranada Dutta Vs. The State of West Bengal & Anrs. {2011 (1) DCR 495}.
(m) Kanhaiya Lal & Anr Vs. State of UP & Anr. {2010 (2) DCR 184 Allahabad High Court}.
(n) Mahindra Hire Purchase (Regd) (M/s) Vs. Biru Ram and Anr {2011 ACD 583 (P&H)}.
(o) B. Indramma Vs. Ishwar {2010 (2) DCR 285 - Karnataka High Court}.
(p) Sudha Beevi Vs. State of Kerala & Anr {2004 CRI. L.C. 3418 (Kerala High Court)}.
(q) N. Rajangan Vs. Centurion Bank Ltd. {2011 [1] JCC [NI] 26 (Madras High Court)}.
(r) Pine Product Industries Vs. R.P. Gupta & Sons 2007 (1) LRC 129 (Del).
(s) Veena Rani Chhabra Vs. Manju Rohida {2009 DCR 302 (Delhi High Court)}.
GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 9 of 23
8. In view of the aforesaid submissions made on behalf of both the parties the points which arise for determination by this court are as follows:
a) Whether the cheque in question was issued by the accused for consideration and in discharge of any legally enforceable debt or liability towards the complainant so as to attract the provisions of Section 138 of the Negotiable Instruments Act?
b) Whether the present complaint is not maintainable as not filed by duly authorized representative of the complainant company?
c) Whether the present complaint is non-maintainable for want of proof of service of mandatory legal notice?
I have considered the rival submissions made on behalf of both the parties and have also perused the record in the light of principles of law laid down in various judgments relied upon by both the parties in support of their respective submissions and now I shall deal with the aforesaid points one by one.
a) Whether the cheque in question was issued by the accused for consideration and in discharge of any legally enforceable debt or liability towards the complainant so as to attract the provisions of Section 138 of GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 10 of 23 the Negotiable Instruments Act?
9. Before adverting to the facts of the case in hand, it would be pertinent to reproduce the relevant provisions of Section 138, 139 and Section 118(a) and (b) of the Negotiable Instruments Act at the very outset, which reads as follows:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless
-
(a) 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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;
GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 11 of 23 and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation :- For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability."
139. 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.
118. Presumption 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;
(b) as to date-that every negotiable instrument bearing a date was made or drawn on such date;"
10. Issue regarding the scope of presumptions u/s 118(a) and u/s 139 of the NI Act has come up for consideration before the Hon'ble Supreme Court in a number of cases. There is no doubt about the settled legal position that once the signatures on the cheque are admitted by the drawer of the cheque, there arises a presumption in favour of the payee/holder in due course in GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 12 of 23 terms of Section 139 and 118 (a) of the Negotiable Instruments Act that the cheque has been issued for consideration and in discharge of a legally enforceable debt or liability. It is also well settled that a) the presumption does not go to the extent of presuming the existence of debt and b) the aforesaid presumption is rebuttable in nature.(See Krishna Janardhan Bhat v. Dattatraya G. Hegde, (SC)2008(1)R.C.R.(Criminal) 695). Further it is also well settled that for the rebuttal of the presumptions it is not necessary that the accused must step into the witness box but the presumptions can be rebutted either by cross examination of the complainant's witnesses (See M.S. Narayana Manon V. State of Kerala & Another AIR 2006 SC 3366 and Krishna Janardhan Bhat v. Dattatraya G. Hegde, (SC) 2008(1)R.C.R. (Criminal) 695) or even by raising presumptions of fact or law from the material available on record (See Kundan Lal Rala Ram V. Custodian Evaccue Property, reported as AIR 1961 SC 1316). Moreover, standard of proof for rebuttal of presumptions by any person accused of an offence under Section 138 of the Negotiable Instruments Act is preponderance of probabilities and accused is not liable to prove his defence beyond reasonable doubts. On the other hand, bare denial or bald suggestions give GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 13 of 23 by the accused would not be sufficient to rebut the aforesaid presumptions. Thus, whether the presumption has or has not been rebutted depends upon the facts of each case to be analyzed in the light of aforesaid legal principles. The judgments relied upon by both the parties also do not lay down anything contrary to the aforesaid propositions of law.
11. Now coming to the facts of the case in hand, there is no dispute between the parties that the accused had availed a loan from the complainant and executed the loan agreement and simultaneously handed over certain post dated cheques to the complainant towards the EMIs under the loan agreement. The cheque in question being one of the aforesaid cheques was issued for valid consideration i.e. the vehicle in question. It is also not disputed that the vehicle was repossessed by the complainant from the accused in the month of March 2009 i.e. much prior to presentation of cheque in question. It is further not in dispute that the vehicle has since been resold by the complainant during the pendency of the present complaint, although there is dispute about the actual resale value and the exact value on the date of repossession of the vehicle. However in view of peculiar facts and circumstances of the case I need not decide the controversy about the GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 14 of 23 exact re-sale price of the vehicle in question. In view of the aforesaid admitted facts, it was contended by Ld. Counsel for the accused that Section 138 of the NI Act is not attracted to dishonour of the cheque in question which was issued by the accused as blank signed security cheque prior to disbursal of the loan amount in question. Even otherwise, he submits, once the vehicle which formed the consideration, if any, for issuance of post dated cheques was repossessed by the complainant during the month of March 2009, the consideration had subsequently failed at the time of presentation of the said cheques in the month of August 2009 and hence in terms of Section 43 of the Negotiable Instruments Act, the dishonour of cheque in question does not give rise to any obligation on the part of accused. Ld. Counsel for the accused has relied upon the Judgment of Hon'ble Kerala High Court in Sudha Beevi's (Supra) case in support of aforesaid submissions made by him. On the other hand, it was contended by Ld. Counsel for the complainant that the aforesaid judgment is not applicable on the facts and circumstances of the present case in as much as in the case before the Hon'ble High Court the issue arose while dealing with hire purchase agreement forming the subject matter of those proceedings, while in the present case we are GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 15 of 23 concerned with the interpretation of loan cum hypothecation agreement. I do not agree with the aforesaid contention of Ld. Counsel for the complainant in as much as the principles on which the case of complainant was dismissed by Hon'ble High Court are equally applicable to the present case so long as the cheque in question was issued by the accused as a post dated cheque at the time of execution of agreement irrespective of the fact whether the agreement is one by way of hire purchase or loan cum hypothecation agreement. The same view has been adopted by Hon'ble Madras High Court in N. Rajangan v. Centurian Bank Ltd., 2011 [I] JCC (NI) 26 (Madras HC) wherein under the identical facts the Hon'ble Madras High Court while dealing with the similar contention regarding applicability of ratio of judgment in Sudha Beevi's case observed as follows:
13.Considering the facts and circumstances of the case, this court is of the view that where it is a hire purchase agreement or purchase on the basis of hypothecation, the same is laid down by the Kerala High Court based on the following principles:
(i) The post dated cheques issued by the hirer were supported by consideration at the time when they were issued, they had ceased to be so when the vehicle was repossessed. The consideration has failed subsequently.
(ii) The post dated cheques in the hands of the GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 16 of 23 owner had become instruments for which consideration had failed.
(iii) As per Section 138 of Negotiable Instruments Act, in order to attract the penal provision, the "debt or other liability" must be "legally enforceable debt or liability". If the negotiable instrument is not supported by consideration, there is no question of the provisions of Section 138 of the Act being attracted.
14. In view of the same, this court is also of the view that once the financier had exercised the option of seizure of the vehicle, the post-dated cheques obtained from the purchaser cannot be presented for encashment after the seizure. The owner has to take recourse to other legal remedies for recovery of the balance amount. If and when the vehicle is sold subsequently, the owner can recover the balance amount for adjusting the sale proceeds of the vehicle. Of course, in the post seizure scenario, it may be open to the parties to agree upon a new schedule of payment or restructuring of the agreement concerned. So, the present case filed on the basis of the post-dated cheques issued by the petitioner is not attracted the offence under section 138 of the Negotiable Instruments Act, and hence the same is liable to be quashed."
12. Thus the present case is squarely covered by the judgment of Hon'ble Madras High Court and hence in view of provisions of Section 43 of the NI Act as well as in the light of aforesaid observations made by Hon'ble Madras High Court, in my considered opinion the cheque in question had already ceased to be an instrument issued for valid consideration as on the date of GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 17 of 23 presentation and hence the dishonour of the aforesaid cheque does not entail prosecution under Section 138 of the NI Act.
13. The finding on first point for determination renders the discussion on remaining two points rather academic but still I consider it appropriate to briefly deal with the remaining two issues in the following paras.
b) Whether the present complaint is not maintainable as not filed by duly authorized representative of the complainant company?
14. It has been contended by Ld. Counsel for the accused that although CW-1 has proved the execution of power of attorney by Mr. Nishant Singh in his favour but has failed to prove that Mr. Nishant Singh was authorized to execute the power of attorney in his favour on behalf of the complainant company by placing on record a valid board resolution in his favour and hence the present complaint is not maintainable. It is further contended by him that even the presumption regarding competency of executant of power of attorney to execute the same on behalf of the complainant company in terms of section 85 of the Evidence Act is not available to the complainant in as much as admittedly the alleged executant has not executed the power of GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 18 of 23 attorney before the notary public. On the other hand, it is submitted by Ld. Counsel for the complainant that merely because the board resolution in favour of the executant of power of attorney is not properly proved by the complainant, the present complaint does not become non-maintainable only for this reason in the absence of any suggestion by the accused to the witness to the effect that the Mr. Nishant Singh was not authorized to execute the power of attorney on behalf of the complainant company. Though I am in complete agreement with the contention of Ld. Counsel for the accused that the presumption under Section 85 of the Evidence Act regarding competency of the executant of power of attorney to execute the power of attorney on behalf of the complainant company is not available to the complainant in the present case but in the absence of any suggestion to the effect that the said person was not authorized/competent to execute the power of attorney on behalf of the complainant, mere non-production of a valid board resolution in favour of alleged executant of power of attorney does not render the present complaint non-maintainable particularly when the execution of the power of attorney by the said executant has been duly proved by the witness.
c) Whether the present complaint is non-maintainable for want of GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 19 of 23 proof of service of mandatory legal notice?
15. It is submitted by Ld. Counsel for the accused in this regard that the present complaint is not maintainable against the accused since the complainant has failed to prove the service of mandatory legal notice within the meaning of proviso (b) to Section 138 of the NI Act upon the accused. According to him, not only the complainant has failed to place on record any acknowledgment card bearing the signatures of the accused but the address to which the legal notice was allegedly sent by the complainant has been proved to be wrong by the accused by production of his proof of identity such as Election ID Card and Driving License. According to him, admittedly the legal notice has been sent by the complainant to the following address viz. Ajayveer Solanki, WZ-17, Asalarpur, Janak Puri, Delhi-110058 while according to him, the correct address of the accused is Ajayveer Solanki, WZ-17, Asalatpur, Janak Puri, Delhi-110058. On the other hand, it is submitted on behalf of the complainant that the legal notice was sent by the complainant to the same address which was furnished by the accused to the complainant at the time of execution of loan agreement. Moreover, according GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 20 of 23 to him, the accused has appeared before this court in response to the processes directed by this court to the same address to which the legal notice was sent by the complainant, which renders the defence sought to be raised by the accused regarding non service of the legal notice as highly improbable. Besides, according to him, since the accused has failed to make the payment of cheque amount in question within fifteen days from the date of his appearance before the court, the aforesaid defence is not available to the accused at this stage.
16. I have considered the rival submissions made on behalf of both the parties and have perused the record. On a perusal of both the addresses it is apparent that there is minor difference in both the addresses and that too in the name of village. Whereas according to the accused the name of village is Asalatpur, in the address mentioned in the legal notice the name of village has been mentioned as Asalarpur. In the light of evidence brought on record it is not possible to give a categorical finding to the effect as to which of the aforesaid two addresses is the correct address of the accused since there is no dearth of cases where wrong names/addresses have been mentioned in the voter ID cards issued by Election Commission of India. Still, in my GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 21 of 23 considered opinion, even if the case of accused that correct name of village is Asalatpur instead of Asalarpur, is believed such a minor error in the spelling of name of village does not render the article non serviceable particularly when there is no error in the name of addressee and in the property number. Moreover, it is not the case of either of the parties that the notice was returned with the remarks such as 'address not found' etc. Besides, it is true that the accused has appeared in response to the processes directed to the same address as has been mentioned in the legal notice. Moreover, since the accused has failed to make the payment of cheque amount within 15 days from the date of his appearance in the court, the aforesaid defence regarding non-service of legal notice on him is not available to him at this stage in view of judgment of Hon'ble Supreme Court in C.C.Alavi Haji's case.
17. To sum up, though I find no substance in the defence sought to be raised by the accused regarding non-maintainability of the present complaint on account of competency of the AR of the complainant and on account of alleged non service of legal notice upon the accused, but in view of my finding on the first point for determination, the accused is hereby acquitted GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 22 of 23 of charges under Section 138 of the Negotiable Instrument act, in as much as, the consideration for issuance of cheque in question had already been failed as on the date of presentation.
18. Ordered Accordingly.
Pronounced in the Open Court on this 22nd day of June 2012. This Judgment consists of 23 signed pages.
(ARUN KUMAR) Metropolitan Magistrate:Dwarka Courts GE Capital Services India v. Ajayveer Solanki CC No. 933/11 Judgment dated 22.06.2012 Page 23 of 23