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3. That the cheque in question was returned unpaid with the remarks "funds insufficient and cheque destroyed in system" vide returning memo dated 06.06.2017. That the fact of dishonour of the cheque in question was brought to the notice of the accused but she failed to make the payment of the said cheque in question to the complainant. That the complainant sent a legal notice dated 08.06.2017 to the accused through her lawyer demanding the payment as per the dishonoured cheque. That the accused failed to pay the cheque amount within the prescribed period. Hence the present complaint under section 138 of NI Act.

ANALYSIS/REASONING

14. At the very outset, it is pertinent to note that in the present matter the cheque in question i.e. Ex.CW1/1 was issued on 15.05.2017 and was dishonored vide return memos Ex. CW 1/2 dated 06.06.2017 with the reason 'funds insufficient and cheque destroyed in system'. Thereafter, a legal notice (Ex.CW1/3) was sent by the complainant on 08.06.2017 to the accused. The accused in her notice framed under section 251 CrPC did not admit receipt of legal demand notice. In her statement recorded under section 313 CrPC as well as in her defence evidence, the accused stated that the legal demand notice was incorrectly addressed as she was a resident of C-49 and not C-48, as mentioned in the legal demand notice. The present matter was instituted by the complainant on 13.07.2017.

21. Accordingly, this Court is of the view that legal demand notice was duly served upon the accused and hence, her defence that it was not served upon him is hereby rejected.

LOAN TRANSACTION NOT PROVEN

22. The second defence of the accused is that she has rebutted the presumption in favour of the complainant while the complainant has failed to prove the loan in question beyond reasonable doubt which was the burden of proof upon her. Ld. Counsel for accused argued that from perusal of the return memo Ex. CW1/2, it is clear that the cheque in question has been dishonored for the reason "funds insufficient and cheque destroyed in system". It was argued that the accused has sufficiently proven her defence by examining herself as DW-1 and DW-2 bank witness and has shown that in 2015 itself, she had issued instructions to her bank to destroy the cheque in question after which it was destroyed by the bank. Documents brought on record by DW-2 were relied upon to show that that the cheque in question could not have been issued by the accused as she had already issued instructions to destroy the same at her bank after it was lost/misplaced. The contradictions in the testimonies of CW-1, CW-2 and CW-3 were stated to be sufficient to disbelieve the version of the complainant.

26. CW-3, Mr. Sonu was examined on behalf of complainant who testified that the complainant had borrowed Rs. 50,000/- from him and that she advanced loan of Rs. 2,00,000/- to the accused in front of him. However, in his cross-examination, he stated that he does not know anything about Rs. 1,50,000/- as stated in his affidavit Ex. CW3/A and that the loan of Rs. 2,00,000/- was not advanced to the accused in front of him.

27. Accused examined herself as DW-1 wherein she stated that she never took any loan from the complainant and had never issued the cheque in question to her. One of the objections raised by Ld. Counsel for complainant during examination- in-chief of the accused was qua mode of proof of Ex. DW 1/1, which is a letter written by accused to her bank, brought on record by the accused to prove that the cheque in question was destroyed by her bank on 10.04.2015 upon her instructions. Ex. DW1/1 bears the stamp of the concerned bank and sign of the KATYAYINI by KATYAYINI SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:04 +0530 concerned bank official. This court is of the view that the document has been sufficiently proven by the accused as the testimony of DW-2 which corroborates the version of accused that the cheque was destroyed on 10.04.2015, clearly proves this fact. Hence, document Ex. DW1/1 shall now be read in evidence.