IN THE COURT OF SH. [ENTITY], [ENTITY] ([ACT])- 12, DWARKA COURTS, NEW DELHI [ENTITY] Versus [ENTITY] U/s : 138 [ACT] 1.
Serial No./CC No. of the case : 3463/12 2. Name of the complainant : [ENTITY] W/o [ENTITY] WZ-443/C, Sadh Nagar, Palam Colony, New Delhi. 3. Date of Institution : 03.12.2010 4. Name of the accused, his : [ENTITY] parentage and residence RZ-200-B, Street No. 3, Sadh Nagar, Palam Colony, New Delhi-45. Also at :- RZ-93-B, Street No. 3, Sadh Nagar, Palam Colony, New Delhi. 5. Date when judgment was : 06.12.2013 reserved 6. Date when judgment was : 18.12.2013 pronounced 7. Offence complained of and : Offence Under [SECTION] of [ACT] 8. Plea of accused : Accused pleaded not guilty and claimed trial 9. Final Judgment Acquitted -:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the complainant [ENTITY] Under [SECTION] of [ACT] (hereinafter referred to as [ACT]) against the accused [ENTITY].
2. In the present complaint, it is submitted that complainant and accused were having family/friendly relations. It is further submitted that accused approached the complainant and requested him to give a loan of Rs. 5,00,000/- for a period of one year. It is further submitted that complainant paid accused the loan amount of Rs. 5,00,000/- by cheque no. 636091 which was duly encashed by accused on 28.04.2009. It is further submitted that while receiving the amount of Rs. 5,00,000/-, the accused issued a post dated cheque bearing no. 979178 dated 30.03.2010 for a sum of Rs. 5,00,000/- drawn on Axis Bank Ltd., Palam Branch, New Delhi in favour of the complainant towards discharge of his liability. It is further submitted that when the said cheque was presented by complainant with its banker for encashment, same was returned unpaid by the Drawee Bank with the returning memo dated 23.09.2010 for the reason "Funds Insufficient". Thereafter, the complainant sent a Legal Demand Notice to the accused by courier calling the accused to make the payment of dishonoured cheque. It is further averred that accused refused to receive the same and failed to make the payment of cheque amount demanded through Legal Notice, thereby committing the offence Under [SECTION] of [ACT] for the prosecution of which the present complaint has been filed.
3. After considering the material on record, the cognizance of the offence U/[SECTION] of [ACT] was taken and accused was summoned on 10.05.2011. The accused appeared in the court on 27.09.2011 and was admitted to bail.
4. Notice U/[SECTION] [ACT] was framed against the accused on 12.12.2011. At the time of framing of notice, the accused pleaded not guilty and claimed trial.
5. The complainant has examined himself as CW1. CW 1 has filed his evidence by way of affidavit Ex. CW1/I, affidavit with regard to proof of service Ex. CW1/D1 and relied upon the complaint Ex. CW1/H following documents : -
(A) Original cheque in question is exhibited as Ex. CW1/A. (B) The cheque returning memo is exhibited as Ex. CW1/B and envelope of the same is exhibited as Ex. CW1/B1. (C) Office copy of the legal notice is exhibited as Ex. CW1/C. (D) Courier Receipts are exhibited as Ex. CW1/D and Ex. CW1/E. (E) The envelopes received back by the complainant showing the refusal are exhibited as Ex. CW1/F and Ex. CW1/G respectively. CW 1 was discharged after cross-
examination.
6. No other witness has been examined by the complainant and complainant evidence was concluded on 06.02.2013.
7. The accused was examined U/[SECTION] [ACT] and all the incriminating evidence were put to the accused. In his statement the accused admitted the fact of taking loan from the complainant for an entry in his records and also admitted that he had issued the cheque in question. The accused denied the receipt of legal demand notice but admitted that the given addresses are correct. The accused further submitted that he had already repaid the amount of Rs. 5,00,000/- to the complainant by way of cash after 04-05 days of encashment of cheque by which he has received the loan amount from the complainant.
8. The accused has examined himself U/[SECTION] [ACT] as DW 1, Sh. [ENTITY], EC No. 43524453, [ENTITY] in the court of Sh. [ENTITY], Ld. MM, Dwarka Courts, New Delhi as DW 2, Sh. [ENTITY] S/o Late Sh. [ENTITY] as DW 3 and Sh. [ENTITY], Deputy Manager, Axis Bank, WZ-24A, Palam Village, New Delhi-110045 as DW 3.
9. DW 2 has relied upon the following documents : - (A) Copy of complaint titled as [PRECEDENT] is exhibited as Ex. DW2/1. (B) Copy of the application U/[SECTION] [ACT] is exhibited as Ex. DW2/2. (C) Copy of list of witnesses is exhibited as Ex. DW2/3. (D) Copy of complaint dated 06.07.2010 lodged with SHO PS Palam is exhibited as Ex. DW2/4. (E) Copy of complaint dated 31.07.2010 lodged with SHO PS Palam Village is exhibited as Ex. DW2/5. (F) Copy of cheques are exhibited as Ex. DW2/6. (G) Copy of passbook of Smt. [ENTITY] is exhibited as DW2/7. (H) Copy of passbook of Sh. [ENTITY] is exhibited as DW2/8. (I) Copy of returning memos are exhibited as Ex. DW2/9 and Ex. DW2/10 respectively (J) Copy of vakalatnama dated 03.07.2012 is exhibited as Ex. DW2/11. (K) Copy of statement of [ENTITY] dated 05.09.2010 is exhibited as Ex. DW2/12. DW 2 was discharged after cross-examination.
10. DW 3 has relied upon letter dated 24.09.2013 which is exhibited as Ex. DW3/1 and certified copy of statement of account of accused which is exhibited as Ex. DW3/2. DW 3 was discharged after cross-examination.
11. No other witness has been examined by the accused and the defence evidence was closed vide order dated 25.09.2013.
12. Final Arguments on behalf of the accused heard. The complainant has filed written arguments.
13. Firstly, the Ld. Counsel for the accused has argued that complaint is liable to be dismissed as there is no evidence on record against the accused because the complainant/CW1 in her cross-examination has stated that she does not know the contents of evidence by way of affidavit. Ld. Counsel for the accused has further argued that complainant/CW 1 in her cross-examination has stated that her Pre Summoning Evidence by way of affidavit, complaint, Legal Demand Notice were prepared at the instructions her husband and not on her instructions.
14. Perusal of evidence reveals that CW 1 in her cross-examination has stated as follows :-
"My Pre Summoning Evidence by way of affidavit Ex. CW1/1, complaint Ex. CW1/H, legal demand notice Ex. CW1/C was prepared at the instructions of my husband and not on my instructions."
She further stated as follows :-
"I do not know the date, month and year when I signed Ex. CW1/1. I do not remember the place where I signed Ex. CW1/1. The attestation of Ex. CW1/1 by the Oath Commissioner was not done in my presence. I had never read the contents of Ex. CW1/1. I do not know about the contents of Ex. CW1/1. I do not know the date, month and year when I signed affidavit Ex. CW1/D1. The attestation of Ex. CW1/D1 by the Oath Commissioner was not done in my presence. I had never read the contents of Ex. CW1/D1. I do not know about the contents of Ex. CW1/D1. I do not know about the contents of my complaint Ex. CW1/H. I do not know about the contents of legal demand notice Ex. CW1/C. I am deposing before the court on my own. I do not know how many documents had been filed in the present case."
The complainant in her cross-examination has completely failed to support her case.
15. The Ld. Counsel for the complainant has argued that accused has admitted the fact of loan taken by him from the complainant in his testimony U/[SECTION] [ACT] Perusal of testimony of accused reveals that accused has stated that he had obtained two cheques of Rs. 5 lacs from the husband of the complainant. In his testimony, the accused has nowhere admitted that he had taken loan of Rs. 5 lacs from the complainant. Moreover, the complainant in her cross-examination stated that her husband knows about all the transactions in question but the complainant has neither examined her husband to prove said transactions nor examined any bank official to prove the payment of loan given to the accused by way of cheque. Hence, the complainant has failed to prove the fact of loan given to the accused by way of cheque.
16. Ld. Counsel for the accused has also argued that accused has not received the legal demand notice, therefore, the present case is not maintainable.
The Hon'ble Supreme Court of India in case titled as K [ENTITY] v. Sankaran Vaidhyan Balan & Ors. [PRECEDENT] has held as follows :-
"No doubt [SECTION] of the [ACT] does not require that the notice should be given only by "post". Nonetheless the principle incorporated in [SECTION] (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proved that, it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoidng the notice."
In the case of [PRECEDENT], the Hon'ble Supreme Court of India has held as follows :-
"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] of the Act, make payment of the cheque amount and submit 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 form the court along with the copy of the complaint under [SECTION] of the Act, cannot obviously contend that there was no proper service of notice as required under [SECTION], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in [ENTITY] case2 if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of [SECTION] of the Act."
In view of the aforementioned judgment of K [ENTITY] v. Sankaran Vaidhyan Balan & Ors. and [PRECEDENT]., an accused person cannot take benefit of his own wrong by avoiding the service of legal demand. In the instant case, Ld. Counsel for the accused has argued that accused has left Delhi alongwith his family members in year 2010 due to financial problem, therefore, no legal demand notice was received by him. If this argument of the Ld. Counsel for the accused is taken positively, then, it will defeat the entire purpose of object of the proviso of 138 [ACT] because in that case such type of debtors like accused can easily evade their liability U/[SECTION] [ACT] by leaving their address given to their creditors. Moreover, if the accused genuinely wants to make the payment of cheque amount he could do so after receiving the summons from the court but this is not the case. Therefore, this defence is not available to accused.
17. Moreover, the complainant has sent the legal demand notice Ex. CW1/C to the accused at two addresses mentioned in Ex. CW1/C through Courier Receipts Ex. CW1/D and Ex. CW1/E which was received back by him vide envelopes Ex. CW1/F and Ex. CW1/G with the report "Party Refused". The accused in his statement U/[SECTION] [ACT] has admitted both the addresses as correct at which the legal demand notice was sent by the complainant. In view of the judgment in the case titled as "[PRECEDENT]" & [SECTION], [ACT], it can be safely presumed that the legal demand notice Ex. CW1/C was served upon the accused.
Conclusion :-
18. In the facts and circumstances of the present case, on appreciation of the evidence and on the basis of material on record, I hold that accused is able to adduce the rebuttal evidence by raising a probable defence which creates doubt about the existence of legal enforceable debt or liability, hence, in such a scenario, the burden shift back to the complainant which the complainant has failed to discharge.
19. Therefore, no offence U/[SECTION] of [ACT] is made out against the accused. Hence, accused stands acquitted.
ANNOUNCED IN THE OPEN COURT ON 18.12.2013 All the pages from 1 to 8 are signed by me. ([ENTITY]) [ENTITY] ([ACT]) - 12, DWARKA COURTS,NEW DELHI.