2018 (2) TMI 238

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....with HDFC Bank; that the complainant had presented the cheque with his banker for encashment but the same was dishonoured vide memo dated 5.6.2013 with the endorsement 'Account Closed'. The complainant had issued legal notice dated 26.6.2013 to the accused calling upon him to make payment of cheque amount within stipulated period of 15 days from the date of receipt of notice but to no effect. Hence the complaint was filed in the Court of Judicial Magistrate Ist Class, Rajpura. After recording of preliminary evidence accused was summoned. He put in appearance and was admitted to bail and notice of accusation for offence under Section 138 of the Negotiable Instruments Act was served upon him to which he pleaded not guilty and claim....

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....under Section 138 of Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for 10 days. In this judgment the trial Magistrate had observed that accused had not examined any witness to prove its defence version and such version was not rather put to the complainant during his cross examination. The accused has failed to prove that he owned any tractor and complainant was running spare part shop for that he had purchased any spare part from the complainant. As a matter of fact, no receipt regarding purchase of spare part from the shop of the complainant had been produced evidence. In para no. ....

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..... But, I am not convinced with the submission made by Ld. Counsel for the appellant-accused. There is no sufficient evidence led by the appellant to prove these facts on the cord. It is the accused, who adopted this plea and it was highly incumbent upon him to prove these facts, however, in the present case from the above discussion of the evidence, it can be said that accused failed to substantiate his defence. Further more, when the legal notice dated 26.6.2013 was served upon the appellant-accused, then he should have replied the same, but, he omitted to do so, so an adverse inference due to that omission is liable to be drawn against the appellant. The other ingredients to attract the provisions of Section 138 of Negotiable Instruments ....