The facts in brief that prodded the complainant to file the present case is that the accused was known to the complainant being residents in the same vicinity. In the year 2014, accused approached the complainant for a friendly loan of Rs. 3,00,000/­. The complainant being on good terms with the accused, advanced the said amount for a stipulated period of one year on 23.08.2014. The accused in discharge of her liability, issued the cheque in question bearing no. 505085 dated Complaint Case No. 45506/16 ­2­ 31.08.2015 amounting Rs. 3,00,000/. The complainant presented the cheque in question for encashment through her banker but the same got dishonoured by the bankers of accused with the remarks "Account Closed" vide returning memo dated 03.09.2015. Henceforth, the complainant issued the mandatory notice U/s 138 NI Act dated 09.09.2015 and the same was served upon the accused vide postal receipts and registered AD.

2. After the institution of the present complaint, the complainant adduced her pre summoning evidence U/s 200 Cr. P.C. on the basis of which, the accused was summoned to face trial for the offence U/s 138 NI Act. After the service of the summons, the accused entered her appearance whereupon the provisions of Sec. 207 Cr. P.C. were also complied.

3. The accused was admitted to bail and then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon the accused after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty" and claimed trial.

4. In order to substantiate her case, the complainant examined himself as CW1 whose contents are a mere repetition of what had already been discussed under the "Brief Facts" and hence are not repeated for the sake of brevity. Complainant was cross­examined and thereafter the CE was closed.

5. All the incriminating circumstances, appearing in the Complaint Case No. 45506/16 ­3­ evidence against the accused were put to him in order to enable him to offer her explanation under Section 313 r/w sec 281 Cr. PC. Thereafter, the accused lead her defence evidence and examined herself as DW­1 after which the defence evidence was closed and final arguments were heard.

6. I have carefully gone through the entire file and have heard the arguments on both sides.

7. In an offence under Section 138 N.I. Act, all the complainant is required to prove is execution of cheque in favour of the complainant for an existing legal liability, the dishonour of cheque and the failure to comply with the requirements of legal notice within the statutory period of 15 days. Once, this burden is discharged all the accused is required to do is only to raise a doubt in the story of the complainant on the scale of preponderance of probabilities in order to get the benefit of doubt and discharge her burden.

8. Now in the given case, the complainant has already furnished all the documents regarding the issuance of cheque on record . Once, that is proved the presumptions u/s 118 NI Act and 139 NI Act would get attracted as held by Hon'ble Apex Court in SLP (Crl.) 407/06, wherein it was held:

"it will be presumed in favour of the complainant during the trial that the cheque in question was received by the Complaint Case No. 45506/16 Monika Markan Vs. Pratibha @ Pratibha Mishra ­4­ complainant against a legally enforceable debt or liability".

Once the presumption is raised the onus squarely shifts on the accused to rebut the same failing which the court "shall" presume that the cheque in question was issued towards some legal debt or liability and in lieu of consideration. It is for the accused now to put forth her defence.

9. The accused per contra has denied the allegations made by the complainant. However, the accused has quite unequivocally admitted that she has issued the cheque in question to the complainant. She has also admitted her signature on the cheque but has denied that she has filled the other particulars of the cheque. On it is so admitted that the cheque in question was issued by the complainant under her signature, the enquiry gets circumscribed to the question whether the defence led by the accused is credible. It is the case of the accused that the cheque was given as a security to the complainant. Rather, the accused under her statement u/s. 251 Cr.PC had alleged that the complainant was running a committee and on account of the same, the accused had issued two blank signed cheques to the complainant as security. One of the cheques has been misused by the complainant. Accused further alleged that the complainant had also taken her signature on blank papers. Now, interestingly, the accused failed to explain as to why she did not file any police complaint or make any other effort to retrieve the security cheques or the blank signed papers Complaint Case No. 45506/16 ­5­ from the complainant. The accused failed to prove by any documentary or oral evidence the actual handing over of the two blank signed security cheques or blank papers to the complainant. No detail was furnished regarding the other blank signed cheques allegedly still in the possession of complainant. The accused has also never alleged the factum of blank signed papers being handed over to the complainant anywhere else in her evidence or defence thereby raising suspicion in her version. The defence of issuing blank signed cheques to the complainant also does not hold water as it is already explicitly laid down in Section 20 of NI Act, 1881, that where one person signs and delivers to another a negotiable instrument either wholly bank or having written thereon an incomplete negotiable instrument he thereby gives, "primafacie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument". It has also been held by Hon'ble High Court of Delhi in " (149(2008) DLT882):­ "There is no alteration in a cheque if the amount and the date are filled by somebody else part from the signatory of the cheque".

It was further held that:­ "There is o law that requires the filling up of entire cheque by drawer himself".

2008(2) LRC118(Del), it has been held that:­ "If a blank signed cheque is given then it is Complaint Case No. 45506/16 6­ possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a late date".

Also, in it was held by Hon'ble High Court on 05.05.2011, that any person who issues blank signed cheque should understand the consequences of doing so.

10. The pivotal defence raised by the accused is that she does not have any legally, enforceable liability towards the complainant and the cheque in question has been misused by the complainant. If that indeed was the case, then, one fails to understand as to why the accused never instructed her bank to stop payment or for that matter, why has she not registered any police complaint regarding the misuse of the same. The accused did not lead any prove to show that the cheque in question where indeed given as security cheque.

11. The clinching piece of evidence that defeats the entire case of accused is in the defence raised by her at various places which are not only inconsistent, but also contradictory. The accused for the first time in her application u/s. 145(2) NI Act had alleged that the complainant was running a committee and in the year 2012, the accused had invested in a big committee ran by the complainant, but subsequently, when she could not arrange the amount for some months, the complainant came forward to assist her and provided some money at interest rate of 10% and 20%. Now, ther first defence which was disclosed by the accused Complaint Case No. 45506/16 Monika Markan Vs. Pratibha @ Pratibha Mishra ­7­ was completely vague as neither the amount was mentioned nor "some money" was specified, nor any explanation was furnished as to why two interest rates of 10% and 20% have been given. This defence is completely vague and lacks credibility. Further, it was alleged that in December 2012 in order to settle the matter with the complainant, the accused gave Rs. 50,000/­ to the complainant and the balance at that time was due for an amount of Rs. 36,280/­. It is further alleged that the accused thereafter, issued two cheques to the complainant for balance amount of Rs. 1,22,200/­ and then finally to get rid of the matter, the husband of the accused on 16.05.2013 transferred an amount of Rs. 2,20,000/­ in the complainant's account. Further, in para no. 5 of the said application, accused further alleged that she has already given an amount of Rs. 2,70,000/­ to the complainant and therefore, nothing was due towards the complainant. The accused has also relied on a photocopy Ex. CW1/DX­1 in support of her contention. Even if, the above document is partly admitted, it proves nothing. The calculation jotted down in the above document does not explain the satisfaction of any legal liability on the part of the accused towards the cheque amount. The accused in her statement u/s. 313 r/w 281 Cr.PC had alleged that in the year 2012, she had received an amount of Rs. 1,22,200/­ from the complainant at an interest rate of 20% per annum. This is again in contradiction to the defence that she had taken in her application u/s. 145(2) NI Act. The accused had also examined herself as DW1 and again certain new facts were alleged in her examination in chief and she could not establish that the amount of Rs. 2,70,000/­ if at all given to the Complaint Case No. 45506/16 ­8­ complainant was against the liability of the cheque in question. She failed to explain as to why if actually the matter was settled with the complainant, the blank signed cheques were never taken back from the complainant. Merely, avowing that the complainant stated that the cheques were not traceable, will not prove anything. It was for the accused to report the matter to the police or file a missing report if that indeed was the case. When cross­examined, her credibility was further impeached by the Ld. Counsel for complainant. Though, in her statement u/s. 251 Cr.PC, she has clearly admitted that she had received the legal demand notice, in her cross­examination dated 24.10.2019, she alleged in contradiction that she never received any legal demand notice, but the address mentioned in the legal demand notice is her correct address. Otherwise also, if the accused was to be believed, it is inconsequential in the given circumstances as it has already been held by Hon'ble Apex court in 2007)6 SCC 555 and as correctly relied upon by the complainant, to quote "It is also to be borne in mind that the requirement of givning 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 ent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under section 138 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 Complaint Case No. 45506/16 ­9­ summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court alongwith the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring staturtory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.".

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