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H. Undisputed/ Uncontroverted facts

21.The accused in the notice put to him under Section 251 Cr.P.C and in the statement under Section 294 Cr.P.C, has not denied that the cheque in question was issued from his account. Therefore, it is not in dispute that the original cheque in question i.e. Ex.CW-1/2 has been drawn on an account maintained by the accused. Furthermore, the cheque in question bears the name of complainant as the payee and the present complaint has been filed by the complainant in his Umang Digitally signed by Umang Joshi Joshi Date: 2023.05.15 13:50:44 +05'30' own name. Thus, the complainant has been able to discharge the burden of proving that the cheque in question was issued in his favour on an account maintained by the accused. Furthermore, it is not in dispute that the cheque in question was presented within its validity period. Furthermore, the factum of dishonour of the cheque in question with remarks "Funds Insufficient" vide return memo Ex. CW-1/3 is not disputed by accused. The accused in the notice under Section 251 Cr.P.C and in the statement under Section 294 Cr.P.C has admitted that he had received the legal demand notice from the complainant. Furthermore, all the requirements for filing a complaint under Section 138 of NI Act have been complied with in the present case and the present complaint has been filed within the period of limitation.

27.It is pertinent to note that in the notice under Section 251 Cr.P.C and in the statement under Section 294 Cr.P.C, the accused has admitted his signature on the cheque in question and has further admitted that the cheque in question is Umang Digitally signed by Umang Joshi Joshi Date: 2023.05.15 13:51:06 +05'30' from his account. Therefore, it is concluded that the presumption under Section 118(a) and Section 139 of the NI Act that the cheque in question was issued in discharge of a legally recoverable debt or other liability is raised in favour of complainant in the present case.

30. Therefore, it is imperative to examine the defence of the accused in the present case. In the plea of defence in the notice under Section 251 Cr.P.C, the accused has stated that there were business transactions between him and the complainant. The accused has further stated that the complainant had come to his office and had taken the cheque in question without his knowledge and had misused the same. The accused has further denied any liability towards the complainant. The aforesaid defence has been reiterated by the accused in his statement under Section 313 Cr.P.C read with Section 281 Cr.P.C and also in his deposition as DW-1. In his examination in chief, the accused deposed that the complainant was his school friend and the complainant used to come to his office. The accused further deposed that the cheque in question was kept in his office and the complainant has taken the cheque in question kept at his office without his knowledge and has misused the same. The primary defence of the accused is therefore that the cheque in question was kept in his office and the same was taken by the complainant from his office without his knowledge and the same has been misused by the complainant. In other words, the accused has alleged that the complainant has committed theft of the cheque in question by taking away the cheque in question kept at his office without his knowledge.

35.It is pertinent to mention that in the notice under Section 251 Cr.P.C, the accused has admitted that he had received the legal demand notice from the complainant. Furthermore, in his cross examination, the accused has admitted that he did not give any reply to the legal demand notice sent by the complainant to him. The said conduct of the accused is inexplicable and it further erodes the credibility of his defence. Since the primary defence of the accused is that the complainant had come to his office and had taken the cheque Umang Digitally signed by Umang Joshi Joshi Date: 2023.05.15 13:51:41 +05'30' in question without his knowledge, it was incumbent upon the accused to atleast reply to the legal demand notice sent by the complainant and thereby rebut the allegations of the complainant. However, the accused strangely preferred to remain silent even after the receipt of the legal demand notice from the complainant and did not even bother to reply to the said notice. The silence of the accused in such circumstances casts a grave doubt on the veracity of the version put forth by the accused and it also raises an adverse inference against the accused. Such conduct of the accused defies all logic and is antithetical to how a reasonably prudent person would have acted in the event of his cheque being stolen and misused by a known person from his office premises. The aforesaid conduct of the accused further renders the defence of the accused unworthy of credence.