Delhi District Court
Pl Services vs Arvinder Kaur on 23 September, 2023
IN THE COURT OF MS. NEHA SAINI
M.M. (N. I. ACT) DIGITAL COURT-07, SOUTH-WEST
DWARKA COURTS, NEW DELHI
CC NI ACT NO: 198/2020
CNR / Case No. DLSW020350142020
P. L. Services
Through its Proprietor Sh. Shyam Kumar Sharma
& It's A.R Sh. Vikas Sharma
Office At: 210, Building No.12/56,
D. R. Chambers, Desh Bandhu Gupta Road,
Delhi - 110005 .........Complainant
Versus
Smt. Arvinder Kaur
W/o Sh. Kuljeet Singh,
R/o L-44, 1st Floor, Vasudev Nagar,
Pratap Nagar, Delhi - 110007 ........Accused
Offence Complained of or proved : Under Section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 01.12.2020
Date of Institution : 02.12.2020
Date of reserving judgment/order : 16.09.2023
Final Order/Judgment : Convicted.
Date of pronouncement : 23.09.2023
Digitally signed by
NEHA SAINI NEHA SAINI
Date: 2023.09.23
11:44:01 +05'30'
CC NI Act No.198/2020 Page 1 of 21
TABLE OF CONTENTS PAGE NO.
A BRIEF FACTS OF THE CASE 3-4
B APPEARANCE OF ACCUSED, NOTICE & 4-5
ADMISSION AND DENIAL OF DOCUMENTS
C COMPLAINANT'S EVIDENCE 5-6
D STATEMENT OF ACCUSED 7
E DEFENCE EVIDENCE 8
F FINAL ARGUMENTS 8-9
G DISCUSSION ON PRINCIPLES OF LAW 10-11
H POINTS FOR DETERMINATION 11-12
I REASONS FOR THE DECISION 12-20
J DECISION 20-21
JUDGMENT:
1. Vide this Judgment, I will dispose of the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") filed by the complainant against accused on account of dishonour of a Cheque in question bearing no. 855779 dated 19.10.2020 for an amount of Rs.5,80,000/- drawn on State Bank of India, Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:44:12 +05'30' CC NI Act No.198/2020 Page 2 of 21 Pratap Nagar, New Delhi - 110007 (hereinafter referred to as the cheque in question).
A. BRIEF FACTS OF THE CASE
2. It is the case of the complainant that the accused along with Mrs. Twinkle Kalia approached the complainant in the month of April 2018 and made a request for financial assistance/loan for a period of 15 months and the complainant agreed to grant financial aid of Rs.22,95,000/- (Rs.15,00,000/- + Rs.7,95,000/-) including interest and accordingly, the complainant gave loan to Mrs. Twinkle Kalia on 26.04.2018. After obtaining the loan from the complainant, Mrs. Twinkle Kalia made part payment of the loan amount by way of installments but thereafter, Mrs. Twinkle Kalia could not maintain the repayment schedule and committed default in making the repayment of the loan amount. Thereafter, the accused along with Mrs. Twinkle Kalia came to the office of the complainant in the month of September 2020 and in discharge of part legal liability of Mrs. Twinkle Kalia towards the repayment of above- mentioned loan amount, the accused issued the cheque in question on behalf of Mrs. Twinkle Kalia bearing no. 855779 dated 19.10.2020 for an amount of Rs.5,80,000/- drawn on State Bank of India, Pratap Nagar, New Delhi - 110007, in favour of complainant's proprietorship concern, namely M/s P. L Services with the assurance that the same shall be encashed on its presentation. Complainant Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:44:22 +05'30' CC NI Act No.198/2020 Page 3 of 21 presented the said cheque with its banker namely ICICI Bank Ltd., Branch- Plot No.6, Sector-5, Dwarka, Delhi but to the utter surprise of complainant the said cheque got dishonoured and returned with the remarks "Funds Insufficient" vide ICICI Bank dishonoured memo dated 08.10.2020. Thereafter on receiving the information regarding the dishonour of the cheque in question on 21.10.2020, the complainant contacted accused who, instead of making the payment of the cheque amount, lingered on the matter and at last, refused to make the payment of the cheque in question i.e. Rs.5,80,000/-. Thereafter, the complainant sent legal notice dated 05.11.2020 to the accused whereby accused was requested to make the payment of the cheque in question within 15 days from the receipt of the said notice. The accused, despite the service of the said notice, neither complied with nor replied to the same and failed to make payment of the dishonoured cheque within stipulated time and, thus, she has committed an offence under Section 138 of the NI Act, 1881.
B. APPEARANCE OF ACCUSED, NOTICE AND ADMISSION AND DENIAL OF DOCUMENTS
3. Upon receipt of the complaint, cognizance of the offence was taken and the accused was summoned vide order dated 08.01.2021. Accused appeared in response to summons on NEHA Digitally signed by NEHA SAINI SAINI Date: 2023.09.23 11:44:29 +05'30' CC NI Act No.198/2020 Page 4 of 21 22.02.2021 before this court and was admitted to bail. Thereafter, a separate notice explaining accusations to the accused under Section 138 of the Negotiable Instruments Act, 1881 was served upon her in terms of Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) on 27.02.2021. Accused pleaded not guilty and claimed trial. Further, the following plea of defence was taken by the accused at the time of framing of notice: -
"I had stood as surety/guarantor for the loan taken by my friend from the complainant. I do not remember the exact amount. I had only issued security cheques to the complainant. I have already repaid the loan amount. Now, no amount is due to the complainant. The complainant has misused the security cheque and the complainant has got the cheque in question dishonoured deliberately. Even after filing of the present complaint, the complainant is misusing the security cheque and is still getting the security cheque amount withdrawn from my bank account without my permission".
4. Statement of the accused regarding admission/denial of documents was recorded under Section 294 CrPC on 27.02.2021. Accused has admitted that the cheque in question is from her bank account, her signature on the cheque in question and return memo.
5. Thereafter, accused was allowed to cross examine the complainant after her application u/s 145(2) of NI Act was allowed vide order dated 12.04.2021.
C. COMPLAINANT'S EVIDENCE
NEHA Digitally signed by NEHA SAINI
Date: 2023.09.23 11:44:36
SAINI +05'30'
CC NI Act No.198/2020 Page 5 of 21
6. During the trial, the complainant has led the following oral and documentary evidence: -
ORAL EVIDENCE CW-1 Complainant Mr. Vikas Sharma (AR for the complainant) tendered his evidence by way of affidavit and the same is Ex. CW-1/A. DOCUMENTARY EVIDENCE Ex. CW-1/1 Cheque in question bearing no.855779 Dated 19.10.2020 for an amount of Rs.5,80,000/-
Ex. CW-1/2 Return memo dated 21.10.2020
Ex. CW-1/3 Legal Demand Notice dated 05.11.2020
Ex. CW-1/4 Postal receipts of legal demand notice
Ex. CW-1/5 Return envelope showing refusal by the accused
to accept legal demand notice
Mark A Copy of Power of Attorney dated 13.03.2020
Digitally signed by NEHA SAINI
NEHA SAINI Date: 2023.09.23 11:44:44
+05'30'
CC NI Act No.198/2020 Page 6 of 21
Thereafter, despite giving ample opportunities, Ld. Counsel for the accused failed to cross-examine the complainant, therefore, right of the accused to cross-examine the complainant was closed vide order dated 26.06.2023. CE was closed vide order dated 21.08.2023.
D. STATEMENT OF ACCUSED
7. Thereafter, the statement of the accused was recorded without oath u/s 313 CrPC to allow her to personally explain the circumstances appearing in evidence against her. In her statement u/s 313 CrPC, the accused denied all the allegations against her and took the following defence:-
"I used to work in the office of Mr. Himanshu. Mr. Himanshu had taken a loan from the complainant. I was only a guarantor to the said loan transaction. The cheque in question was taken from me as a security cheque. The complainant has misused the said security cheque and has filed the present complaint against me. I do not have any legally enforceable liability towards the complainant company. I did not receive the legal demand notice dated 05.11.2020 Ex.CW1/3.".
8. Thereafter, the accused had moved an application u/s 311 CrPC to recall the complainant CW-1 for cross-examination. Application u/s 311 CrPC filed by the accused side was allowed by this court vide separate order dated 01.09.2023 and one opportunity was given to the accused side to cross- examine CW-1 and the matter was fixed for cross-
NEHA Digitally signed
by NEHA SAINI
SAINI Date: 2023.09.23
11:44:50 +05'30'
CC NI Act No.198/2020 Page 7 of 21
examination of CW-1 on 04.09.2023. However, the accused side did not cross-examine CW-1 on 04.09.2023 and the right of accused to cross-examine CW-1 was closed on 04.09.2023.
E. DEFENCE EVIDENCE
9. The accused examined herself at the stage of defence evidence as DW-1, after her application u/s 315 CrPC, was allowed by this court vide order dated 04.09.2023 and she was duly cross-examined by the Ld. Counsel for the complainant. DE was closed vide order dated 12.09.2023 and matter was fixed for final arguments.
F. FINAL ARGUMENTS
10.Final arguments on behalf of the accused were thereafter heard on 16.09.2023.
11.It is submitted by Ld. Counsel for the Complainant that the complainant has been able to prove all the ingredients of offence under Section 138 of the Negotiable Instruments Act, 1881. Ld. Counsel for the Complainant submits that the accused has admitted her signature on the Cheque in question Ex. CW-1/1. In view of her admission, according to Ld. Counsel for complainant, a presumption arises in Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:45:00 +05'30' CC NI Act No.198/2020 Page 8 of 21 favour of complainant that the cheque in question was issued by the accused in discharge of her legally enforceable debt or liability towards the complainant. Ld. Counsel for the Complainant submits that the accused has not given any plausible rebuttal of the aforesaid presumption, even on the touchstone of preponderance of probabilities as the accused did not produce any statement of bank account or payment receipts to show that Mrs. Twinkle Kalia or the accused has repaid the loan amount to the complainant. Ld. Counsel for the Complainant further submits that the accused has neither filed any police complaint against the complainant nor filed any case against the complainant for misuse of security cheque by the complainant, as alleged by the accused. Ld. Counsel for the complaint further submits that the accused has duly received legal demand notice dated 05.11.2020 Ex. CW-1/3.
12.Per Contra, it is submitted by Ld. Counsel for the accused that the Cheque in question Ex. CW-1/1 was issued by the accused only in the capacity of a Guarantor on behalf of Mrs. Twinkle Kalia in the loan transaction which had taken place between the complainant and Mrs. Twinkle Kalia and therefore, accused is not personally liable to repay the loan amount and hence, accused is not liable make the payment of the cheque amount. Ld. Counsel for the accused submits that the Cheque in question Ex. CW-1/1 is a security cheque which has been misused by the complaint. Accused has also stated at various stages of trial that she did not receive legal Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:45:07 +05'30' CC NI Act No.198/2020 Page 9 of 21 demand notice dated 05.11.2020 Ex. CW-1/3.
G. DISCUSSION ON PRINCIPLES OF LAW
13. I have heard the submissions made on behalf of the parties and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, it would be pertinent to discuss the principles of law regarding the essential ingredients to prove an offence under Section 138 NI Act, 1881.
14. To establish an offence under Section 138 NI Act, 1881, the following essential ingredients are required to be proved by the complainant: -
i. The cheque was 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 liability. "Debt or other liability" means a legally enforceable debt or other liability ii. The cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:45:22 +05'30' CC NI Act No.198/2020 Page 10 of 21 is earlier.
iii. The cheque 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 iv. The payee or the holder in due course of the cheque, as the case may be, has made 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.
v. The drawer of the 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.
H. POINTS FOR DETERMINATION
15. In the instant case, perusal of the case record reveals that the cheque in question Ex. CW-1/1 is dated 19.10.2020 and complainant presented the said cheque in his bank account in ICICI Bank Ltd., Branch- Plot No.6, Sector-5, Dwarka Delhi for its encashment on 19.10.2020, but the same got Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:45:34 +05'30' CC NI Act No.198/2020 Page 11 of 21 dishonoured on 21.10.2020 for the reason "Funds Insufficient" and the same was returned to the complainant along with cheque return memo dated 21.10.2020. Ex. CW-
1/2. Thus, it is evident from the record of the present case that the cheque in question Ex. CW-1/1 was presented within 3 months from the date on which it was drawn and was returned unpaid due to "funds insufficient" vide cheque return memo dated 21.10.2020 Ex. CW-1/2.
16. However, the following are the points which have to be determined by this Court:
(i) Whether the cheque in question Ex. CW-1/1 was drawn by the accused for a legally enforceable debt or other liability?
(ii) Whether the legal Demand notice dated 05.11.2020 Ex. CW-1/3 was duly served upon the accused?
I. REASONS FOR THE DECISION
(i)Whether the cheque in question was drawn by the accused for a legally enforceable debt or other liability?
17. It is the case of the complainant that the accused along with Mrs. Twinkle Kalia approached the complainant in the month of April 2018 and made a request for financial assistance/loan for a period of 15 months and the Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:45:41 +05'30' CC NI Act No.198/2020 Page 12 of 21 complainant agreed to grant financial aid of Rs.22,95,000/- and accordingly, the complainant gave loan to Mrs. Twinkle Kalia on 26.04.2018. After obtaining the loan from the complainant, Mrs. Twinkle Kalia had made part payment of the loan amount, by way of installments but thereafter, Mrs. Twinkle Kalia could not maintain the repayment schedule and committed default in making the repayment of the loan amount. Thereafter, the accused along with Mrs. Twinkle Kalia came to the office of the complainant in the month September 2020 and in discharge of part legal liability of Mrs. Twinkle Kalia towards the repayment of above-mentioned loan amount, the accused issued the cheque in question on behalf of Mrs. Twinkle Kalia. Thus, it is the case of the complainant that the accused issued the cheque in question Ex. CW-1/1 in favour of the complainant in the capacity of guarantor to the loan taken by Mrs. Twinkle Kalia. The signature on the cheque in question Ex. CW-1/1 were admitted by the accused. Once the signatures on the cheque are admitted by the accused, there arises a presumption in favour of the complainant in terms of Section 139 and 118 of the Negotiable Instruments Act that the cheque must have been issued by the accused for consideration and in discharge of her legally enforceable debt or liability towards the complainant. The Hon'ble Supreme Court in Rangappa v. Srimohan Rangappa v. Sri Mohan, (2010) 11 SCC 441 has held that "the aforesaid presumption even goes to the extent of presumption of existence of debt and liability of the accused towards the Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:45:50 +05'30' CC NI Act No.198/2020 Page 13 of 21 complainant. Further, it has been held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as the accused can rebut the same by placing reliance on the material brought on record by the complainant. It is well settled that the standard required from the accused to prove her defence is preponderance of probabilities and accused need not prove her defence beyond reasonable doubt." No doubt that the aforesaid presumption is rebuttable in nature and the accused has tried to rebut the same by examining herself as witnesses in her defence. However, it is to be examined now that whether the accused has been able to prove non-existence of a legally enforceable debt or other liability by raising a probable defence.
18.In the present case, the accused, in order to rebut the presumption raised in favour of the complainant, has mainly taken the defence that the cheque in question Ex. CW-1/1 is a security cheque which has been misused by the complainant and she had only issued the Cheque in question Ex. CW-1/1 in the capacity of a Guarantor on behalf of Mrs. Twinkle Kalia in the loan transaction which had taken place between the complainant and Mrs. Twinkle Kalia and therefore, accused is not personally liable to repay the loan amount and therefore, accused is not liable make the payment of the cheque amount. Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:45:58 +05'30' CC NI Act No.198/2020 Page 14 of 21
19.In Sripati Singh v. State of Jharkhand, 2021 SCC OnLine SC 1002 it was held that:
"17.A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
18.When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the NEHA SAINI Digitally signed by NEHA SAINI Date: 2023.09.23 11:46:09 +05'30' CC NI Act No.198/2020 Page 15 of 21 criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
20.Thus, from the above-mentioned judgment it is clear that "merely labelling the cheque as a security would not obviate its character as an instrument designed to meet a legally enforceable debt or liability." In the present case, at the time of framing of notice the accused stated that : "I had stood as surety/guarantor for the loan taken by my friend from the complainant. I do not remember the exact amount. I had only issued security cheques to the complainant. I have already repaid the loan amount. Now, no amount is due to the complainant. The complainant has misused the security cheque and the complainant has got the cheque in question dishonoured deliberately. Even after filing of the present complaint, the complainant is misusing the security cheque and is still getting the security cheque amount withdrawn from my bank account without my permission". At the time of recording of statement of accused u/s 313 r/w 281 Cr.P.C accused stated: "I used to work in the office of Mr. Himanshu. Mr. Himanshu had taken a loan from the complainant. I was only a guarantor to the said loan transaction. The cheque in question was taken from me as a security cheque. The complainant has misused the said security cheque and has filed the present complaint against me. I do not have any legally enforceable liability towards the complainant company. I did not receive the legal demand notice dated 05.11.2020 Ex.CW1/3." At the time of Defence evidence accused deposed that: "It is correct that in two cases (CC NI Act No.196/2020 and CC NI Act No.197/2020) I have stood as guarantor for Mr. Himanshu Kalia and in one complaint case (CC Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:46:18 +05'30' CC NI Act No.198/2020 Page 16 of 21 NI Act No.198/2020). I have stood as guarantor for Ms. Twinkle Kalia." Thus, the accused has admitted the factum of loan transaction in question at various stages of trial. But the accused has not placed on record any proof of repayment of the loan amount like statement of bank amount, payment receipts etc.
21.Thus, it is clear from the above discussion that the factum of loan transaction in question has been admitted by the accused herself at various stages of trial and a fact that has been admitted need not to be proved as per Section 58 of the Indian Evidence Act, 1872. Further, no proof of repayment of loan amount has been produced by the accused. Accused has also admitted that she was the guarantor in the above- mentioned loan transaction and she has admitted her signatures on the cheque in question Ex. CW-1/1. Thus, the cheque in question Ex. CW-1/1, even if given as a security cheque by the accused, had matured for presentation after the outstanding loan amount had become due and therefore, the cheque in question Ex. CW-1/1 is a cheque issued for a legally enforceable debt or liability and the payee/holder of the cheque was entitled to present the same and, on such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
22.Further the accused has taken the defence that the Digitally signed by NEHA SAINI NEHA SAINI Date: 2023.09.23 11:46:28 +05'30' CC NI Act No.198/2020 Page 17 of 21 complainant has misused the security cheque. However, at the time of cross-examination, accused as DW-1 had deposed that "I have not filed any police complaint against the complainant for making me sign on blank papers and blank file. (Vol. I was told that this is the procedure for taking loan. I have lodged a police complaint against the complainant once after the complainant threatened me and misbehaved with me to repay the loan amount. I had made a call on 100 number)." Accused, as DW-1, further deposed that: "I have not filed any case against the complainant for making me sign on blank papers and blank file. I have taken loan from the complainant in my personal capacity as well in 2017. I have asked for statement of loan account from the complainant as a borrower and guarantor in writing. It is correct that I have not brought the said written request by me." In the present case, the accused has not initiated any legal proceedings against the complainant even after the fact of institution of the present complaint against him had come to her knowledge for the alleged misuse of her cheque in question. There is nothing on record to show that the accused issued any "stop payment" directions to her bank. Thus, the statements made by the accused do not inspire confidence and it appears that in order to escape from her liability to pay the amount qua cheque in question she has taken this defence as the accused has not made any overt efforts, which any reasonable man would undertake in case of misuse of her cheques.
23.Moreover, even if the cheque in question Ex. CW-1/1 was Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:46:37 +05'30' CC NI Act No.198/2020 Page 18 of 21 issued by the accused as a Guarantor on behalf of Mrs. Twinkle Kalia, the accused is still liable under Section 138 NI Act, 1881. In ICDS Ltd. v. Beena Shabeer, (2002) 6 SCC 426 it has been held by the Hon'ble Supreme court of India that : "The words "any cheque" and "other liability" in Section 138 clarifies the legislative intent. If the cheque is given towards any liability which may have been incurred even by someone else (such as in a case of a guarantor), the person who draws the cheque is liable for prosecution in case of dishonour of the cheque." Thus, even a guarantor to a loan is liable under section 138 NI ACT, 1881 if he has drawn the cheque for repayment of loan amount.
24.In view of the above discussion, it is clear that the cheque in question Ex. CW-1/1 was a cheque drawn for a legally enforceable debt or other liability.
(ii) Whether the legal Demand notice dated 05.11.2020 Ex. CW-1/3 was duly served upon the accused?
25.It is submitted by accused that she did not receive the legal demand notice dated 05.11.2020 Ex. CW-1/3 .However, During her cross-examination the accused had deposed that:
"The addresses mentioned on the legal notice Ex.CW-1/3 are my office address from where I had resigned and my residential address where I used to live on rent. I have not placed on record my resignation letter." Moreover, in C.C. Alavi Haji v.
Palapetty Muhammed (2007) 6 SCC 555, 17), it has been NEHA Digitally signed by NEHA SAINI SAINI Date: 2023.09.23 11:46:47 +05'30' CC NI Act No.198/2020 Page 19 of 21 held by the Hon'ble Supreme Court of India that "Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business." Thus, it is clear that legal demand notice dated 05.11.2020 Ex. CW- 1/3 was duly served upon the accused.
J. DECISION
26.In view of the aforesaid discussion, the complainant has been able to prove all the ingredients, which are essential, to constitute an offence under section 138 of the NI Act, 1881, that is, the cheque in question Ex. CW-1/1 was drawn by the accused for a legally enforceable debt or liability and it was presented to the bank within a period of three months from the date on which it is drawn, but was returned unpaid due to "Funds Insufficient" vide cheque return memo dated 21.10.2020 Ex. CW-1/2 and thereafter, legal demand notice dated 05.11.2020 Ex. CW-1/3 was duly served upon the accused but the accused failed to make the payment of the said amount of money to the complainant within fifteen days of the receipt of the said notice .On the contrary, the Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:46:57 +05'30' CC NI Act No.198/2020 Page 20 of 21 accused has failed to rebut the presumptions arising in favour of complainant under Section 139 and 118 of NI Act even on the touchstone of preponderance of probabilities and once the initial presumption has not been rebutted by the accused, onus to prove the liability of accused to the extent of cheque amount in question by production of documents, evidencing the proof of transaction in question has not shifted to the complainant.
27.In view of the above discussion, the complainant has been successful in proving his case as per law. Consequently, accused is held guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881.
28.Accused is, thus, convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881.
29.Ordered accordingly.
Announced in the Open Court on 23.09.2023 This Judgment consists of 21 signed pages. Copy of the judgment be given to the convict free of cost Digitally signed by NEHA NEHA SAINI SAINI Date: 2023.09.23 11:47:07 +05'30' NEHA SAINI MM (NI ACT) Digital Court-07 South West, Dwarka Courts, New Delhi 23.09.2023 CC NI Act No.198/2020 Page 21 of 21