Delhi District Court
In Re vs Sh. Naresh Kumar on 16 September, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Appeal No. 04/14
In re:
Gagan Goel,
Proprietor of M/s A.G. Group,
R/o RZ-77A/2, Gali No. 3,
Main Sagarpur,
New Delhi.
............... Appellant
Versus
Sh. Naresh Kumar,
S/o Sh. Jai Narain,
R/o RZ-26P/69, Gali No. 39,
Indira Park, Palam Colony,
New Delhi.
............... Respondent
Date of Institution of Case : 25-07-2014
Date on which Judgment was reserved : 10-09-2014
Date on which Judgment was delivered : 16-09-2014
JUDGMENT
1. This judgment shall decide the criminal appeal filed by appellant Gagan Goel (accused before the Ld. Trial Court) against judgment dated 25-06-2014 and order on sentence dated 28-06-2014 passed by the Court of Sh. Vijay Shankar, Ld. A.C.M.M., Dwarka Courts, New Delhi, vide which the appellant was convicted u/s 138 Negotiable Instruments Act, 1881 Crl. App. No. 04/14 16-09-2014 1 of 21 ( hereinafter referred to as NI Act ) and sentenced to Simple Imprisonment for one year, and to pay a compensation of Rs. 90,000/- to the complainant and in default thereof to undergo simple imprisonment for one month.
2. The facts leading to filing of this appeal are that the respondent (complainant before the Ld. Trial Court) filed a complaint alleging that he and the accused were having friendly relations since long. In the month of January to March 2004, accused requested him for a friendly loan of Rs. 1,25,000/- for promotion of his business. Keeping in view the requirement of accused and the friendly relations, he advanced a sum of Rs. 1,25,000/- to the accused in cash. However, no receipt was executed since it was a friendly loan. In discharge of his part liability, the accused issued three Account Payee cheques viz. cheque No. 037014, dated 20-03-2006 for Rs. 20,000/-, cheque No. 37013, dated 23-03-2006 for Rs. 20,000/- and cheque No. 37015, dated 23-03-2006 for Rs. 25,000/-, all drawn on ABN Amro Bank, NV Hansalaya, 15, Barakhamba Road, New Delhi in favour of the complainant. On presentation, the said cheques were returned unpaid with reasons " insufficient funds" . The complainant sent a legal notice dated 03-04-2006 to the accused, through registered post as well as UPC, requesting him to make payment of the cheque amount within 15 days. The said notice was duly served upon the accused.
3. After recording pre-summoning evidence, the accused was summoned. A notice u/s 251 Cr.P.C. was given to the accused to which he pleaded not guilty. Complainant deposed as CW 1. Statement of accused u/s 313 Cr.P.C. was recorded. Accused testified u/s 315 Cr.P.C. as DW 1. Vide Crl. App. No. 04/14 16-09-2014 2 of 21 judgment, dated 25-06-2014, the accused was convicted for offence u/s 138 NI Act and vide order on sentence, dated 28-06-2014, he was sentenced as above.
4. The impugned judgment and order on sentence have been assailed, inter-alia, on the ground that the cheques in question were never issued or given to the respondent against any legal liability. Rather, the same were misused as Sh. Naveen Singh, brother of the complainant, who was partner of the appellant, had taken the cheques from the office and given to the respondent and one Sh. Prince Solanki. Sh. Naveen Singh was having control and supervision on the office and access to the cheque-books and other documents pertaining to the partnership business. The appellant has discharged his onus to rebut the presumption that the cheques were issued against legally enforceable liability. The complainant has nowhere mentioned as to when the alleged loan amount was given to the appellant or by what mode, it was given. Ld. Trial Court has also not considered the fact that three cheques were issued on 20-03-2006 and 23-03-2006, which dates are very close to each other, and why a single cheque was not issued. There was no reason to issue three cheques, two of Rs. 20,000/- and one of Rs. 25,000/- within 3 days. It is further contended that admittedly complainant is an income tax payee since 1997 but he has not shown any entry in regard to the friendly loan in his income tax return. He has also not produced the diary in which he has allegedly noted the loan. The aforesaid facts are sufficient to hold that respondent was unable to prove friendly loan to the appellant or that there was any legal liability of the appellant to refund any amount. It is further stated that Ld. Trial Court has erred in not appreciating the fact that Crl. App. No. 04/14 16-09-2014 3 of 21 respondent has concealed the material facts from the court. Merely a leaf of cheque-book containing signature of a person is not sufficient to hold that it is a negotiable instrument unless it is proved that the remaining body of the leaf was filled up by the accused or at his instance. It is further stated that Ld. Trial Court has erred in fixing the compensation on a higher side without taking into consideration the status/condition of the appellant.
5. Sh. P.K. Bhardwaj, Ld. counsel for the appellant has argued that there is no loan agreement and no receipt executed regarding the alleged loan in question. The complainant has not shown any entry regarding the loan in his income tax return. He has not mentioned the date on which loan was allegedly given by him. The cheque is not of the loan amount and it has not been clarified by the complainant as to how three cheques in a short span of three days were issued by the accused. He has further argued that the brother of the complainant had worked with accused during the period March 2005 to November 2005 and cheques were taken by brother of the complainant and misused. He has also relied upon Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 (1) LRC 123 (SC), S.K. Jain & Anr. Vs. Vijay Kalra, 2014 (3) LRC 352 (Del), John K. Abraham Vs. Simon C. Abraham & Anr., 2013 (9) LRC 23 (SC) and Satish Kumar Vs. State NCT of Delhi & Anr., 2013 (7) LRC 209 (Del).
6. Sh. Dinesh Mudgil, Ld. counsel for the respondent has argued that the cheques, Ex. CW1/A-2 and Ex. CW1/A-3 have been signed by the appellant at two places, one as drawer of the cheque and other on the corrections which shows that these cheques were issued by accused only.
Crl. App. No. 04/14 16-09-2014 4 of 21 Accused has not lodged any complaint with any authority regarding loss of cheques. He finally argued that the Ld. Trial Court has rightly convicted the appellant.
7. I have heard Sh. P.K. Bhardwaj, Ld. counsel for the appellant and Sh. Dinesh Mudgil, Ld. counsel for the respondent and have also perused the record.
8. To prove a case u/s 138 NI Act, the complainant is required to prove the following ingredients :-
(a) A cheque was drawn by accused on an account maintained by him with a bank,
(b) It was drawn by the accused for payment of money to the complainant in discharge of a debt or liability,
(c) Such debt or liability was legally enforceable,
(d) The cheque was presented by the complainant within 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier,
(e) The cheque was returned by the bank unpaid due to insufficiency of funds,
(f) The complainant made a demand for the payment of the cheque amount by giving a notice in writing to the accused within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid, and
(g) The accused failed to make payment of the said amount of money to the complainant within 15 days of the receipt of the notice.
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9. From the evidence and other material on record and arguments advanced by the parties, there appears to be no dispute about the following facts:-
(a) Cheques No. 037014, 37013 and 37015, Ex. CW1/A-1 to Ex. CW1/A-3 respectively of ABN Amro Bank were signed by the accused, Proprietor of A.G. Group, as the drawer thereof,
(b) The said cheques were presented by complainant Naresh Kumar in his bank i.e. H.D.F.C. Bank, Dwarka, New Delhi,
(c) The said cheques were returned by ABN Amro Bank unpaid due to insufficiency of funds, vide return memo, dated 22-03-2006, Ex. CW1/B-1 and two return memos dated 25-03-2006, Ex. CW1/B-2 and Ex. CW1/B-3,
(d) The complainant made a demand to the accused for payment of the cheque amount, by giving a notice dated 03-04-2006, Ex. CW1/C, vide registered post, Ex. CW1/D and UPC, Ex. CW1/E.
(e) The accused did not make payment of the cheque amount to the complainant within 15 days of the receipt of the said notice.
10. However, the following facts are in dispute :-
(a) The cheques, Ex. CW1/A-2 and Ex. CW1/A-3 were issued by the accused for payment of money to the complainant, and
(b) The same were issued in discharge of any legally enforceable debt or other liability towards the complainant.
11. To properly appreciate evidence on the facts in issue, it is pertinent to note that the nature of transaction regarding which issuance of Crl. App. No. 04/14 16-09-2014 6 of 21 cheques in question is alleged is a friendly loan of Rs. 1,25,000/- advanced by the complainant to the accused in cash. As per Section 269 SS of the Income Tax Act, 1961, a loan for a sum of Rs. 20,000/- or more cannot be taken otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account. Violation of this provision is punishable u/s 271 D of the said Act.
12. It is well settled that the onus to prove guilt of the accused lies upon the prosecution. However, in some cases, upon establishment of certain facts, statutory presumptions arise regarding guilt of the accused. In a case under section 138 NI Act, such presumptions arise under section 118 (a) and 139 of the said Act. Section 118(a) of the NI Act provides as under:-
"118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
XXXXXXXXXX"
Further, section 139 of the NI Act stipulates as under:-
"139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
13. The above presumptions shift the onus upon the accused to Crl. App. No. 04/14 16-09-2014 7 of 21 prove that the cheque was not issued in discharge of any legally enforceable existing debt or liability. Thus, in such cases, the initial onus lies upon the drawer of the cheque to prove that the cheque in question was issued without consideration. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court held, "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, ......."
14. However, the presumptions u/s 118 (a) and Section 139 N.I. Act are rebuttable. In Hiten P. Dalal Vs. Bratindranath Banerjee (supra), it was further held, ".........but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary."
Once some evidence has been led by the party on whom the onus is placed by the presumption to prove a fact, the initial onus placed on him stands discharged and thereafter it has to be decided on the basis of evidence led by the parties whether the cheque in question was issued for consideration or not.
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15. It is well settled that the standard of proof for the accused to rebut the presumption under section 139 and 118 (a) of the NI Act is preponderance of probabilities and he is not required to prove his case beyond a reasonable doubt. For rebutting the presumption, accused can raise a probable defence. He can do so by leading direct evidence or circumstantial evidence or by relying upon the broad improbabilities in the prosecution case or by raising presumption of law or fact in his favour from the evidence led by either party. In this regard, reference can be made to the following judgments :-
a) Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, wherein the Hon'ble Supreme Court held, "Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. ..........."
b) In G. Vasu v. Syed Yaseen Sifuddin Quadri, AIR 1987 AP 139, the Hon'ble Andhra Pradesh High Court held, "From the aforesaid authorities, we hold that once the defendant adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there is no consideration in the manner pleaded in the plaint or suit notice or the plaintiff's evidence, the burden shifts to the plaintiff and the presumption 'disappears' and does not haunt the defendant any longer."
Crl. App. No. 04/14 16-09-2014 9 of 21 It was further held,
" For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S. 118 does not again come to the plaintiff's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance."
c) In M.S. Narayana Menon Vs. State of Kerala (2006) 6 SCC 39, the Hon'ble Apex Court held, " Applying the said definitions of 'proved' or 'disproved' to 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. "
d) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Crl. App. No. 04/14 16-09-2014 10 of 21 Hon'ble Supreme Court held, " The accused may also rely upon presumption 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."
e) In Shirish Vasant Borkar Vs. Shri Vijaykumar K. Pillienkar Fadke & Anr, 2014 (1) DCR 184, the Hon'ble Bombay High Court held, " The standard of proof for the accused to rebut the presumption under section 139 and 118(a) of the NI Act is pre-ponderance of probabilities.
f) In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (supra), the Hon'ble Supreme Court, in paras 17, 18, 20, 24, 25, 32 and 33 of its judgment held, "17. Before embarking upon the legal issues, we may analyse the deposition of PW-1 Complainant. He was a resident of village Goddalmane. Appellant is a resident of village Kekkar. As he was running an industry at Hubli, he sometimes resided in Hubli also. They were said to be friends. He asked him to give a loan of Rs. 1.5 lakhs in the first week of June, 1998 and the amount was handed over to him on 14th June, 1998. It was allegedly agreed that on the appellants failure to repay the said loan within one month, 15% interest would be charged. No document was executed; no pronote was executed; no receipt was obtained. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Merely, the cheque was Crl. App. No. 04/14 16-09-2014 11 of 21 tendered and it was marked as an exhibit. The cheque appears to have been issued as a proprietor of a business concern.
................
He did not produce any books of accounts or any other proof to show that he got so much money from the bank. He admittedly did not have any written document pertaining to the accused. He accepted that there was no witness to the transaction. He, of course, denied certain suggestions, but the suggestions put to him were required to be considered by the court below in the backdrop of the facts and circumstances of the case.
18. The courts below failed to notice that ordinarily in terms of Section 269 SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only.
Section 271D of the Income Tax Act reads as under:
" 271D. Penalty for failure to comply with the provisions of section 269SS. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner."
"20. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a Crl. App. No. 04/14 16-09-2014 12 of 21 presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability."
"24. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.
25. A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration."
"32. ......... The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. ...........
33. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in Crl. App. No. 04/14 16-09-2014 13 of 21 financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
In this regard, a reference can also be made to S.K. Jain Vs. Vijay Kalra, 2014 (1) DCR 547, John K. John Vs. Tom Varghese and Anr., 2007 (4) Civil Court Cases 690 (SC), Harbhajan Singh v. State of Punjab and another, AIR 1966 SC 97, V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762, Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961 and Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35].
16. It is also pertinent to refer to Munshi Prasad Vs. State of Bihar, (2002) SCC 351, wherein the Hon'ble Supreme Court held that the evidence tendered by the defence witness can not always be termed to be tainted one by reason of the factum of the witness being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the Crl. App. No. 04/14 16-09-2014 14 of 21 prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on par with that of the prosecution.
17. It is well settled that if from the evidence brought on record two inferences or views are possible, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In this regard a reference can be made to Ramdas Vs. State of Maharashtra, (1977) 2 SCC 124 and Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773.
18. It is in the light of the above position of law that the evidence has to be appreciated.
19. In the instant case, the complainant has generally testified on the same lines as his complaint. He has deposed that in the month of January to March 2004, the accused approached and requested him for giving him friendly loan of Rs. 1,25,000/- for promotion of his business. He advanced a sum of Rs. 1,25,000/- to the accused in cash. However, no receipt was executed since it was a friendly loan. Accused in discharge of his liability has issued the cheques Ex. CW1/A-1 to Ex. CW1/A-3.
20. During his cross examination, complainant denied that the cheques in question were not handed over to him by the accused or no friendly loan had been given to the accused. He further stated that he has not shown any entry in regard to making a friendly loan in his Income-Tax return. He had maintained a diary in which he had noted as to how he has made Crl. App. No. 04/14 16-09-2014 15 of 21 payment of loan amount to the accused. He had not placed any document with his complaint in regard to the payment of money but he could introduce that diary on the next date. He further stated that Sh. Naveen Singh is his younger brother and he is also running his cable business since 2003. He has no knowledge whether his brother Sh. Naveen Singh was a partner of A.G. Group. He denied the suggestion that Sh. Naveen Singh had handed over the cheques to him after taking the same from the office of A.G. Group by fraudulent means. He further denied the suggestion that the cheques were fabricated by him or that there was no legally enforceable liability of the accused against the cheques. He also denied the suggestion that he used to visit residence of the accused. He admitted that in the past he was BC of his area.
21. DW 1 Sh. Gagan Goel has testified that Sh. Naveen Singh, real brother of complainant Naresh, was partner with him in A.G. Group. His partner was also having control and supervision of the cheque books and other documents pertaining to the business of partnership firm. He had not taken any loan from the complainant either in his personal capacity or on behalf of the partnership firm nor he had issued the cheques. The same are neither signed by him nor filled up by him. The cheques Ex. CW1/A-1 to Ex. CW1/A-3 were never issued by him against any legally enforceable liability or against any consideration. He further deposed that cheques in question were removed with ill motive by the brother of the complainanat who was his partner and had given the same to the complainant just to extort money from him. They had sent the bad elements (gundas) at his residence who had threatened his mother. His mother has lodged a complaint with the DCP, Crl. App. No. 04/14 16-09-2014 16 of 21 South West, the Hon'ble Home Minister, Govt. of India and Commissioner of Police, with regard to the said threat. The Additional Personal Secretary of the State Cabinet Minister, Ministry of Home also wrote a letter dated 07-03-2006 to Sh. Ravinder Yadav, the then DCP, South West. He also testified that the alleged notice dated 03-04-2006 was never served upon him. In the record, letter dated 07-03-2006 of the Addl. Private Secretary, Minister of State, Ministry of Home Affairs, vide which he has sent letter of Smt. Yashoda Devi to Sh. Ravinder Yadav, DCP (South-West) is Ex. AW1/B and complaint of Smt. Yashoda Devi to Commissioner of Police, bearing endorsement dated 16-02-2006 regarding receipt thereof is Ex. AW1/B1.
22. During his cross examination, DW1 denied that he had taken Rs. 1.25,000/- from the complainant from January to March 2004 or that he had issued the cheques in question in discharge of the said liability. However, he admitted that the cheques Ex. CW1/A-1 to Ex. CW1/A-3 belonged to his firm and bear his signatures. He volunteered to say that the said blank cheques were kept in his office as it is a partnership firm and there is a requirement to keep the blank signed cheques in his office. He admitted that Ex. CW1/A-1 to Ex. CW1/A-3 pertains to a partnership firm. The name of partner was Sh. Anuj Sharma. He also admitted that in the account from which cheque was issued, Naveen was not the partner. Naveen was taken as partner in firm M/s A.G. Group in the month of May 2005 and remained partner till November-December 2005. He further stated that he came to know about the misplacement of the blank signed cheques from his office may be in February 2006. He had not made any complaint to any authority regarding misplacement of the cheques. He volunteered to state that he came to know Crl. App. No. 04/14 16-09-2014 17 of 21 about the misplacement of the cheques only when he was summoned by the court. He denied the suggestion that he sustained loss in the business or has taken loan from his known persons including the complainant and Prince Solanki. However, he admitted that his financial capacity was so bad that even the cheques for bills, office rent were also dishonoured during that time. He denied that under threat or pressure he had issued the cheque to Prince and Naresh against any liability. He also denied that the cheques in question were given by him in presence of other persons besides complainant and his associates.
23. It is pertinent to note that the complainant in his complaint as well as in his evidence as CW1 has stated that in the month of January to March 2004, he had advanced a sum of Rs. 1,25,000/- to the accused in cash. However, no date or the month has been specified by him when he had advanced the loan. Admittedly, no document viz., loan agreement, receipt etc. was executed at the time of advance of loan. Why no such document was executed is a relevant question. The complainant testified that he had maintained a diary in which he had noted as to how he had made payment of the loan amount to the accused. However, he had neither stated about the said diary in his complaint nor produced the same in his evidence. If the loan was actually advanced and he had produced the said diary, it might have thrown light on the date of advance of loan, how the payment was made, the source of money etc. According to him, the said diary was available with him. Thus, it was incumbent upon him to produce the same before the court. However, the same was not produced. Therefore, an adverse inference can be drawn against him in terms of section 114 of the Evidence Act. Further, Crl. App. No. 04/14 16-09-2014 18 of 21 admittedly he has not made any entry in regard to the loan in his Income-Tax return. The advance of loan in cash for a sum of Rs. 20,000/- or more is also in violation of section 269 SS of the Income Tax Act, 1961. The above facts give force to the contention of the accused that no friendly loan as alleged was advanced to him by the complainant. Further, the accused has himself appeared as a witness and testified that no such friendly loan was advanced by the complainant to him.
24. It is also pertinent to note that in his testimony, accused has stated about his mother lodging complaint, Ex. AW1/B1 to Commissioner of Police and other authorities regarding one Ravinder Pehlwan coming to their house and threatening them and saying that he was sent by Naresh and Naveen Bhai for taking money. During his cross examination, he had denied that he has made false complaint just to avoid liability of the cheques. It is pertinent to note that as per the endorsement of receipt on the complaint Ex. AW1/B1, the same was received by the office of Commissioner of Police on 16-02-2006. Similar complaint was forwarded by Additional Private Secretary, Ministry of State, Ministry of Home Affairs, New Delhi to Sh. Ravinder Yadav, DCP, South West on 07-03-2006. The cheques in question are dated 20-03-2006 and 23-03-2006. Accused has also taken this defence during cross examination of CW1. The evidence brought on record also show that Sh. Naveen, brother of the complainant was a partner of the accused in A.G. Group from May 2005 to November-December 2005. Thus, the defence of the accused that Sh. Naveen took blank signed cheques and handed over the same to the complainant cannot be ruled out.
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25. Ld. counsel for the complainant has argued that cheques Ex. CW1/A-2 and Ex. CW1/A-3 bear signatures of the complainant not only as drawer but also on the corrections made in the cheques. Ld. counsel for the appellant contends that though the cheques have been signed by accused, the corrections have not been signed by him. He further contends that in the cheques, the pen and the ink used in writing the body of the cheque is different from the pen and the ink by which accused had signed the cheques. There is force in the contention of Ld. counsel for the accused. Even with naked eye, it can be seen that the signature of the drawer on the cheque and the date appear to be in one ink and the remaining writing i.e. payee's name and the amount, both in words and figures are in different ink. There is no explanation as to why these are in different ink if the accused had voluntarily issued the cheques to the complaint in discharge of his part liability. Rather, it supports the argument of the Ld. counsel for the accused that at the time of signing, the said cheques were blank and the same were misused by the complainant in collusion with his brother.
26. Applying the test of preponderance of probability, it is considered that the accused has been able to raise a probable defence that no friendly loan of Rs. 1,25,000/- was advanced to him by the complainant and consequently that the cheques were not issued by him in discharge of any legally enforceable debt or liability. Thus, it is considered that the accused had been able to rebut the presumption u/s 118 and 139 of NI Act. The onus thereafter shifted upon the complainant to prove that he had advanced a sum of Rs. 1,25,000/- as friendly loan to the accused and consequently that the cheques in question were issued in discharge of a legally enforceable debt or Crl. App. No. 04/14 16-09-2014 20 of 21 liability. However, complainant has failed to discharge the said onus.
27. In view of the aforesaid discussion, the appeal is allowed and judgment dated 25-06-2014 and order on sentence dated 28-06-2014 are set aside. Appellant/accused is acquitted of the charge levelled against him. His bail bonds are cancelled and his surety is discharged.
28. A copy of the judgment, along with Trial Court Record, be sent to the Ld. Trial Court.
29. Appeal file be consigned to Record Room.
Announced in the Open Court today on 16th Day of September, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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