Anant Rao v. State of NCT of Delhi and Anr

well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice....” (emphasis supplied)

16. In the present case, the petitioner has also admitted his signature on the cheque, and has also admitted the issuance of the cheque. The petitioner, however, disputes the amount for which the cheque was issued. It was argued that the cheque was issued for only a sum of ₹75,000/-, and that Respondent No. 2 had manipulated the cheque in question. It was also contended that the cheque was dishonored, and returned with the endorsement ‘referred to drawee branch’, however Respondent No. 2 failed to show why the cheque was referred to the drawee branch. It was argued that notice was not served upon the petitioner since the tracking report clearly stated that the petitioner was not residing at the given address, and the notice sent on WhatsApp was not shown as to when the same was ‘seen’ by the petitioner. It was argued that there were discrepancies with regard to the date on which Respondent No. 2 borrowed the amount from his brother-in-law, and how the sum of ₹1,75,000/- was handed over to the petitioner.

17. At the outset, it is relevant to note that the signature of the petitioner on the cheques in dispute have not been denied. It is trite law that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused [Ref. Rangappa v. Sri Mohan: (2010) 11 SCC 441].

18. The Hon’ble Apex Court in Rajesh Jain v. Ajay Singh: (2023) 10 SCC 148, while discussing the appropriate approach in dealing with presumption under Section 139 of the NI Act, observed the following:

54. …. Once the presumption under Section 139 was given effect to, the courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The court would then take an overall view based on the evidence on record and decide accordingly.

55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption): Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the “particular circumstances of the case”? xxx xxx xxx

57. Einstein had famously said: “If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions.” Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it.

58. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court. Xxx xxx xxx

61. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on the part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque.

19. It is seen that the learned MM observed that while the petitioner had alleged that Respondent No. 2 manipulated the cheque by adding the ‘1’ in amount written in figures on the cheque, he never requested for any expert opinion on manipulation of cheque, except for the bald assertions of the petitioner. It was observed that Respondent No. 2 had proved the source of arrangement of ₹1,75,000/-, and there were only minor contradictions with regard to the dates on which Respondent No. 2 borrowed the money, which could be overlooked, given that the other claims were substantiated.

20. Further, it is seen that on appeal, the learned ASJ observed that the guiding criteria was not the endorsement “referred to drawee branch” but is the fact that the payment was not made on the presentation of the cheque. It was observed that even otherwise, the right to prosecute arose since the payment was not made even after 15 days of receipt of legal notice. The learned ASJ further observed that the petitioner was in receipt of the statutory notice, since Respondent No. 2 had posted the notice through registered post at the correct address, and the petitioner, though alleged that he was not residing at the said address, failed to lead any evidence to prove the same.

21. In the present case, since the signature of the petitioner on the cheque is admitted, the presumptions under Section 139 and 118 of the NI Act stood against the petitioner, and in favour of Respondent NO. 2. In line with the observations of the Hon’ble Apex Court in Rajesh Jain v. Ajay Singh (supra), the petitioner was liable to adduce evidence to the satisfaction of the Court, to show that on a preponderance of probabilities, there existed no debt/liability in the manner pleaded in the complaint/demand notice/affidavit evidence.

22. In the present case, it has firstly been argued that the cheque was dishonoured for the reason ‘referred to drawee branch’, and Respondent No. 2 failed to show why the said cheque was referred to the drawee branch. The learned ASJ, however, rightly noted that the material factor to attract liability under Section 138 of the NI Act is the fact that upon presentation of the cheque, the payment had not been made. In fact, the learned ASJ further noted that the right to prosecute arose only when the payment was not made even till 15 days of the receipt of legal notice.

23. It is pertinent to mention that the Hon’ble Apex Court in the case of Yogesh Upadhyay and Anr. Vs. Atlanta Limited: Transfer Petition (Cri) Nos. 526-527/2022 reiterated that the offence under Section 138 of the NI Act is complete once the cheque is dishonoured, however, prosecution in relation to such offence is deferred by way of the provisos provided therein, and till the failure of the drawer to make the payment within 15 days of receiving the demand notice. In the present case as well, as was rightly observed by the learned ASJ the right to prosecute arose since the petitioner failed to make the payment even till 15 days of the receipt of legal notice. Even if the argument of the petitioner is taken at the highest, there is still no justification as to why he did not make the payment within 15 days of the receipt of demand notice, or why he did not set up his defense at the earliest possible occasion, that is, at time of receipt of demand notice, especially when the said cheque, upon presentation, was returned with the said endorsement on two occasions.

24. It has also been contended that the petitioner did not receive the demand notice since the tracking report stated that the petitioner was not found at the given address. It is pertinent to mention that the law with regard to service of notice under the NI Act is amply clear. Once the notice is sent on the correct address of the petitioner, by a registered post, then notice is deemed to be served. In that light, defences such as one raised by the petitioner, that is, he was not found at the given address, does not aid the case of the petitioner. The Hon’ble Apex Court in the case of N Parameswaran Unni vs. G. Kannan and Another: (2017) 5 SCC 737 observed as under: “15. This Court in a catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647; State of M.P. v. Hiralal, (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu, (2004) 8 SCC 774: 2005 SCC (Cri) 393]. Though in the process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the NI Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case.”

25. In the instant case, as was observed by the learned ASJ, two addresses of the petitioner had been mentioned in the complaint, and notice was sent at one of the addresses where the petitioner, as admitted during his cross-examination, was residing previously. It was further observed that the petitioner had contended that he had left the said address on which the notice was sent, however, had led no evidence/document to corroborate the same. In view of the same, the learned ASJ, rightly observed that due service is presumed to have been effected since Respondent No. 2 had posted the notice through a registered post, and at the correct address. The onus to rebut the same was on the petitioner, who having failed to do so, cannot claim that notice had not been served upon him.

26. It is pertinent to mention that the petitioner has also argued that notice cannot be deemed to have been served upon him through WhatsApp since Respondent No. 2 failed to show when such notice was ‘seen’ on WhatsApp. Such a contention of the petitioner has no force in the eyes of law. Reference may be had to Section 13 of the Information Technology Act, 2000 (‘IT Act’), which is reproduced as under:

27. In accordance with Section 13 of the IT Act, once the notice in an electronic form, enters a computer resource so as to be outside the control of the originator (herein Respondent No.2), the said notice is deemed to have been dispatched. Further, the moment the said notice enters the computer resource of the petitioner, the same is deemed to have been received, and consequently been served. If the argument of the petitioner that it was not shown when the said notice was ‘seen’ on WhatsApp, and hence there was no service of notice, is accepted, then it would tantamount to stating that while one had ‘received’ the statutory notice through post, since he did not ‘read’ it, there was improper service. From a perusal of record, thus, it is apparent that notice was duly served upon the petitioner.

28. It has consistently been emphasised by the petitioner that the cheque in question was manipulated, however, as has rightly been observed by the learned ASJ, barring the bald claims and assertions of the petitioner, no evidence was led to controvert the same. Mere denial, and assertions do not suffice to dislodge the presumption under Section 118 and 139 of the NI Act.

29. Lastly, it had also been argued that there were discrepancies in the dates on which Respondent No. 2 claims to have borrowed the amount from his brother-in-law to lend it to the petitioner, and when the loan amount was advanced to the petitioner. The minor discrepancies in the dates cannot cast a blow to the case of the prosecution, especially when as has been observed by the learned ASJ, considering the overall evidence, the allegations against the petitioner stood substantiated.

30. From a perusal of the record, it is apparent that the petitioner had not led any evidence to controvert the presumptions against him under Section 118 and Section 139 of the NI Act. Once the signature on the cheque was admitted, it was for the petitioner to rebut, and establish a probable defence to show that on a preponderance of probabilities, there existed no debt/liability in the manner pleaded in the complaint/demand notice/affidavit evidence. In the opinion of this Court, the said burden had not been discharged.

31. In view of the above discussion, the learned ASJ rightly upheld the conviction of the petitioner under Section 138 of the NI Act, and the same cannot be faulted with.

32. The present petition is dismissed in the aforesaid terms. AMIT MAHAJAN, J SEPTEMBER 9, 2024