Delhi District Court
Page No. 1 Of 8 Anshul Tejrana vs . Dharamvir Singh on 4 April, 2018
1
IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 51373/16
b. Date of the commission of the offence : 27/07/2015
c. Name of the Complainant: Anshul Tejrana
d. Name of Accused person and his parentage: Dharamvir Singh,
and residence S/o Late Sh. Boday Singh,
R/o H. No. 366, Block9,
Khichripur, Delhi91.
e. Offence complained of : Dishonouring of cheque for
the reason "Funds insufficient".
f. Plea of the Accused and his examination (if any): Not guilty
because no loan was taken
from the complainant.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 12.03.2018.
i. Order pronounced on : 04.04.2018.
Page No. 1 of 8 Anshul Tejrana vs. Dharamvir Singh
2
Brief reasons for decision:
1.The relevant facts of the case of complainant, in nutshell as reflected in the written complaint are that he and accused were having friendly relationship and the accused had borrowed a friendly loan of Rs. 3 lacs in cash on 15.01.2015 for urgent need of performing marriage of his daughter. It is case of complainant that in order to discharge said debt liability, the accused had issued four cheques including cheque in question bearing number 000136 dt. 04.04.2015 for an amount of Rs. 55,500/ Ex. CW1/A. It is further case of complainant that the cheque in question has returned unpaid vide cheque return memo Ex. CW1/B dt. 27.06.2015 with remarks "Funds insufficient". Thereafter, the complainant got legal demand notice dt. 08.07.2015 Ex. CW1/C sent to accused through his counsel. It is also stated in the complaint that despite service of said legal notice, accused failed to pay any amount to the complainant within stipulated time. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881 (in short NI Act) on 29.07.2015.
2. On other hand, accused admitted his signature on his cheque in question. He also admitted that he had given blank signed cheque in question to the complainant as his wife had to repay Rs. 55,000/ to the complainant, who had to show the same to one of his clients and complainant had allegedly assured him not to present the same with the bank. Accused further admitted that he knew the complainant as his neighbour and also knew family and parent of complainant since his childhood. Accused also stated that he did not receive legal demand notice issued by the complainant (referred to plea of defence of the accused dt. 18.11.2015 at the time of receiving notice of accusation u/s 251 of Cr.P.C).
Page No. 2 of 8 Anshul Tejrana vs. Dharamvir Singh 3
3. Complainant Anshul Tejrana (CW1) during his cross examination stated that accused had demanded loan in question from him in December, 2014 and he had advanced the same to accused in lumsum on 15.01.2015 without interest for the purpose of marriage of daughter of accused in April, 2015. It was suggested during crossexamination of CW1 that he had not advanced any loan to the accused and he had not sent any legal demand notice to the accused. In response to court query CW1 admitted that there was no eye witness to the transaction in question and no written document was executed with respect to the transaction in question. CW1 further stated that he had taken Rs. 1,20,000/ from his brother and remaining amount was arranged by him from his committee. CW1 admitted that loan in question has not been mentioned in his ITR.
4. Malka Rani (DW1) stated that she knew the complainant as he was running a book stall in her neighbourhood and she also knew the accused as he is her neighbour. DW1 further stated that the complainant asked the accused for one cheque for showing the same to some other person at his shop in her presence at the house of accused. DW1 also stated that the cheque in question drawn on Bank of India was given by the accused to the complainant in her presence. During cross examination DW1 stated that she had gone to the house of accused for discussing the matter of study of their sons on given date at about 2:00 PM. DW1 further deposed that accused had given blank signed cheque to the complainant in her presence. DW1 also deposed that the complainant is known as Sonu in her locality and he resides in the next street from her house and also complainant used to run some shop in weekly market. It was suggested during cross examination of DW1 by the complainant that she is deposing in favour of accused as he had to recover her own money given to the accused.
5. Ld. Counsel for the complainant contended that accused had issued Page No. 3 of 8 Anshul Tejrana vs. Dharamvir Singh 4 cheque in question in partial discharge of his debt liability of Rs. 3 lacs given to the accused by the complainant and accused has admitted his signature on cheque in question and therefore, legal presumption of consideration u/s 139 of NI Act should act against the accused, who failed to rebut the same. Ld. Counsel for the complainant further contended that DW1 is not trustworthy witness and accused had not led any further positive evidence to rebut the legal presumption of consideration supporting cheque in question u/s 139 of NI Act. Ld. Counsel for the complainant also submitted that the accused has taken a improbable plea as to the complainant had taken cheque in question from him for showing it to some of his client because why any reasonable person would take a cheque only for the purpose of showing the same to some other person unless it is encashed in the account of the payee.
On other hand, Ld. Defence counsel contended that complainant had taken cheque in question for showing it to some his client and complainant had not shown the loan in question in his Income Tax Return (ITR). Ld. Defence counsel further contended that accused has not taken any loan from the complainant and complainant has failed to prove the alleged loan transaction in question in cash qua accused. Therefore, Ld. Defence counsel requested to acquit the accused while giving him benefit of reasonable doubt.
6. Having gone through the relevant testimony of material witnesses from both the sides and after careful scanning of the material brought on record by both the parties and also considering the rival submissions of both sides the court proceeds to appreciate the same in proper prospective.
7. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and Page No. 4 of 8 Anshul Tejrana vs. Dharamvir Singh 5 debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
8. In M. S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
"29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in Section 3 of the Evidence Act (the Page No. 5 of 8 Anshul Tejrana vs. Dharamvir Singh 6 interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'."
9. In instant case, complainant has claimed that he had advanced huge cash loan amount of Rs. 3 lacs to the accused but he admitted that he has not shown the said loan transaction in his ITR. Complainant admitted that there was no eye witness to alleged loan transaction in question and he failed to explain satisfactorily as to why he had not secured any eye witness to the transaction in question as he could have asked his family member including his own brother namely Deepak Kumar Tejrana from whom he had allegedly taken Rs. 1,20,000/ and given to the accused. It is also noticeable that the complainant also admitted Page No. 6 of 8 Anshul Tejrana vs. Dharamvir Singh 7 that no written document was executed in respect to loan transaction in question. Here too, the complainant failed to act as a reasonably prudent person because he did not secure any pronote or written undertaking of accused qua the claimed loan transaction in question. Complainant did not furnish any plausible reason as to why he had not acted in aforesaid expected manner. Complainant did not examine his own brother Deepak Kumar Tejrana for proving the alleged claim of taking Rs. 1,20,000/ from him by the complainant, which was ultimately given to the accused. Complainant had also not filed any document or examined any witness regarding arrangement of remaining amount of money from alleged committee as claimed in his response to the court query on 01.08.2016. It is also noteworthy that the complainant had not filed any proof as to accused had given three more cheques for repayment of the alleged loan in question given to him as he had not filed statement of account showing encashment of said three cheques of accused or the dishonoured / stale cheques of accused. Accordingly, complainant could not show sufficient reason as to why he had taken the alleged cheque in question of just Rs. 55,000/ in discharge of huge loan of Rs. 3 lacs. All said points creates reasonable doubt on the veracity of case of complainant. It is also noticeable that the case of complainant has to stand on its own legs without taking any benefit of any lacuna in the defence of accused like why accused had given cheque in question to the complainant for allegedly showing the same to some his client.
10. In view of above discussions, the court is of considered view that accused has created reasonable doubt over the genuineness of story of complainant by balance of probabilities and complainant failed to prove his case beyond all reasonable doubts thereafter as matter of fact. The court is also mindful of basic tenant of criminal jurisprudence as to benefit of doubt must go in Page No. 7 of 8 Anshul Tejrana vs. Dharamvir Singh 8 favour of accused and in case of two possible versions, the version favouring the innocence of accused should be opted by the court.
11. In upshot of aforesaid discussion, I return finding of acquittal of accused for offence u/s 138 of NI Act in this case. RAKESH Digitally signed by RAKESH KUMAR RAMPURI KUMAR Location: Karkardooma Courts, East District, Delhi Date: 2018.04.04 17:20:16 RAMPURI +0530 Announced in the open court (RAKESH KUMAR RAMPURI) on 04th Day of April, 2018 MM/KKD/Delhi Page No. 8 of 8 Anshul Tejrana vs. Dharamvir Singh