Delhi District Court
Shri Puran Singh vs . on 29 July, 2013
IN THE COURT OF SHRI SATVIR SINGH LAMBA, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Shri Puran Singh,
S/o Shri Sher Singh,
Cycle Stand, Novelty Cinema,
Delhi. ......Complainant
Vs.
Shri Vijay Narain Seth,
Karta for Bossomal Jagat Narain,
Ritz Cinema, Kashmere Gate,
I.S.B.T, Delhi. ........Accused
JUDGMENT
Complainant Case No. : 1828/1 Date of institution : 17.10.2003 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Acquittal Date of Decision : 29.07.2013 Brief Facts
1. Brief facts of the present case are that the complainant and the CC No.1828/1 page no.1/14 accused are known to each other for the last many years. It is alleged that in the month of February 2003, the accused approached the complainant and requested for a friendly loan. Thereupon, the complainant advanced a friendly loan of Rs. 1,15,000/- to the accused upon which the accused assured to the repayment of loan amount. It is further alleged that the accused handed over two cheques bearing no.984334 dated 03.04.2003 for the sum of Rs.50,000/- drawn on Syndicate Bank, Chandni Chowk, Delhi i.e Ex.CW1/1 and bearing no.984335 dated 20.04.2003 for the sum of Rs.65,000/- drawn on Syndicate Bank, Chandni Chowk, Delhi i.e Ex.CW1/2 in order to discharge the above said liability. The complainant presented the cheques in question for encashment through his banker but the same were got dishonored by the bankers of accused with the remarks "Funds Insufficient" vide returning memo dated 01.09.2003 which are Ex.CW1/3 and Ex.CW1/4. Henceforth, the complainant issued the mandatory notice U/s 138 NI Act dated 15.09.2003 i.e. Ex.CW1/5 and the same was served upon the accused vide registered AD/UPC, same are Ex.CW1/6 and Ex.CW1/7.
2. When the accused failed to fulfill the conditions of the said legal notice Ex.CW1/5 within 15 days of its presumed service, then the complainant has filed the present complaint case U/s 138 of Negotiable Instrument Act 1881 (hereinafter the Act) against the accused.
Pre-Trial Procedure
3. After the institution of the present complaint, the complainant adduced his pre summoning evidence U/s 200 Cr. P.C. on which basis the CC No.1828/1 page no.2/14 accused was summoned via order dated 17.01.2004 to face trial for the offence U/s 138 NI Act. After the service of the summons, the accused entered his appearance whereupon the provisions of Sec. 207 Cr. P.C. were also complied.
4. The accused was admitted to bail then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon the accused on 12.03.2008 after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty" and claimed trial.
Trial
5. In order to substantiate his case, the complainant lead his evidence by way of his affidavit 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 also examined Shri Murugan, Assistant Manager, Tamilnadu Merchantile Bank Limited, Dev Nagar, Karol Bagh, New Delhi as CW2. Both the CW's were duly cross examined by the accused.
6. All the incriminating circumstances, appearing in the evidence against the accused were put in order to unable him to offer his explanation. In his explanation, the accused stated that he has no legal liability towards the complainant. The accused denied the availing of friendly loan from the complainant as well as issuance of cheques in question to the complainant. Accused explained that the present case is filed by the complainant who was working as a guard in his Novelty Cinema, Delhi in connivance with Inder Dev CC No.1828/1 page no.3/14 Sharma, Assistant Manager, another employee of Novelty Cinema. The accused also denied the receiving of legal notice. Lastly accused stated that he is innocent and the cheques in question were misused by the complainant with intention to gain wrongfully.
7. In support of his defence, accused failed to examine any defence witnesses, however, opportunity was given to her for leading defence evidence. Thereafter, DE was closed vide order dated 27.02.2013 whereupon the trial came to a conclusion and the contesting parties were duly heard.
Facts in Issue
8. In order to have the positive outcome in his favour, the complainant was required to show that the cheques Ex.CW1/1 and Ex.CW1/2 were given by the accused to discharge his liabilities which were dishonoured via returning memo whereafter the accused had also failed to comply with the requirements of the legal notice Ex. CW1/5.
9. On the other hand, the accused was required to show his defence on the scale of preponderance of the probabilities that he is not liable to the amount involved to the complainant.
Legal Prepositions
10. The presumptions provided U/s 118 NI Act and 139 NI Act would CC No.1828/1 page no.4/14 come to the rescue of the complainant once the execution of the cheque in question is proved on record.
11. As per section 118 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was given against consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per Sec. 139 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability (Refer :- "Rangappa Vs. Sri Mohan" SLP (Crl.) 407/06, Dated:- 07.05.2010).
12. It is well settled that both the aforesaid presumptions U/s 118 & 139 NI Act are rebuttable in nature and the onus to rebut the same squarely rests upon the accused.
13. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record (inclusive of complainant's evidence and defence evidence, if any), that the complainant was a liar, that their was no existing liabilities between the parties and that the cheque in question was misused. It must be kept in mind that once evidence is brought on record from both sides, it becomes an evidence of the case and court can draw inferences from the said entire evidence either in favour or against any of the parties. Evidence is a complainant's evidence and accused's evidence only for the purposes of CC No.1828/1 page no.5/14 identifying it, but once it is adduced in the case, it becomes the evidence of the case and then the same has to be read as a whole. The court can not read the evidence of the complainant only to the extent it favours the complainant and overlook the remaining evidence which supports the accused merely on the ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the court can draw inferences either in favour of the complainant or against the accused. The accused has a right to argue his case even on the basis of the cross examination of the complainant & his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order to rebut the legal presumption in question, it emerges that the accused need not require direct evidence to disprove the existence of consideration.
14. Preponderance of probabilities is the standard of proof upon the accused to rebut the above presumptions, which is not as high as that of the prosecution whereby the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
CC No.1828/1 page no.6/14Appreciation of Evidence
15. In his cross examination complainant stated that the accused is owner of Novelty Cinema and he was working as a security guard in Novelty Cinema from the year 1984 to 2000. Complainant further stated that he used to received monthly salary of Rs.9.10 paise per day in the year 1984 and his salary was increased upto Rs.1500-1600 in the year 2000. Complainant admitted that Shri Jai Inder Dev Sharma was the Manager of Novelty Cinema. Complainant explained that a sum of Rs.1,15,000/- was given to the accused during the period of April 2003 to June 2003, but no receipt were taken for the giving of the said amount. The complainant admitted that the legal notice Ex.CW1/5 was sent at the instance of said Shri Jai Inder Dev Sharma through advocate Shri B.N.Gupta with whom the said Jai Inder Dev Sharma only had the interactions. Complainant further admitted that the cheques in question were in the possession of said Inder Dev Sharma who used to keep the blank signed cheques of the accused. Complainant further stated that the said Jai Inder Dev Sharma was fully managing the Novelty Cinema and also used to pay the expenses, salary of the staff etc. Complainant admitted that the said Jai Inder Dev Sharma himself filled up the particulars of the cheques in question. Complainant further admitted that the cheques in question were handed over to him by the said Jai Inder Dev Sharma in the premises of Novelty Cinema itself. However, all the suggestions put to him were denied by the complainant.
16. The deposition of CW2 reveals that the cheques in question were deposited in bank on 01.09.2003 and were dishonored due to reason funds CC No.1828/1 page no.7/14 insufficient on 02.09.2003. The CW2 was duly cross examined by the accused but nothing material has come out from his cross examination.
17. The plea of defence raised by the accused in the present case is that neither he has availed the financial assistance of Rs.1,15,000/- from the complainant nor has issued the cheques in question to the complainant. Further defence of the accused is that the cheques in question are misused by the complainant in conspiracy with his another employee Jai Inder Dev Sharma.
18. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheques in question were signed by the accused which were dishonoured vide bank memo and despite the legal notice accused did not make the payment. It is argued that during the cross examination of complainant nothing material has come out and the complainant has been able to prove his case. It is further argued that accused has failed to discharge the burden upon him to rebutt the presumption in favour of the complainant under the Act.
19. Now the question is whether the complainant proved his case, that whether the amount was legally enforceable debt. Offence under Section 138 of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of CC No.1828/1 page no.8/14 cogent evidence.
20. Ld. Counsel for accused argued that the accused is having no legal liability towards the complainant because the cheques in question were neither issued by the accused nor handed over by the accused to the complainant. Ld. Counsel for accused argued that the accused has not availed any loan of Rs. 1,15,000/- from the complainant at any point of time. Ld. Counsel for accused further argued that the complainant has not furnished on record any documentary proof in support of alleged giving of the friendly loan. Further counsel for complainant argued that the complainant has misused the cheques in question in conspiracy with Jai Inder Dev Sharma with ulterior motive to harass the accused. Ld. Counsel for accused argued that the statutory legal notice is not sent to the accused on his correct address despite having a knowledge of correct address.
21. 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/evidence on preponderance of probabilities to prove that cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, there is no need 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.
CC No.1828/1 page no.9/1422. From the material on record, it is established that the complainant and accused are known to each other as the complainant was employee of the accused. The signatures on the cheques is not disputed by the accused. It is further established on record that the cheques in question got dishonored vide bank memo but the accused had specifically denied the issuance of cheque in question to the complainant in the manner as alleged in the present complaint case. It is also established on record that the cheques in question pertains to the account of the accused and are in the name and style of Bassomal Jagat Narain
- Karta.
23. The complainant raised the foundation of the present case in his complaint is that the accused has approached him for a friendly loan of Rs. 1,15,000/- and the cheques in question were issued by the accused in order to discharge the said liability. The defence of the accused in the present case is that he has neither availed loan of Rs.1,15,000/- nor issued the cheques in question to the complainant for the alleged repayment of the above said alleged loan. During the cross examination of the complainant it is brought on record that the cheques in question were issued by the manager of the accused namely Shri Jai Inder Dev Sharma to the complainant. It is also established on record that the said Jai Inder Dev Sharma used to manage all the affairs in the running of the Novelty Cinema including the payments of expenses, salaries of the staff etc. The said Inder Dev Sharma also used to keep the signed cheques of the accused with himself. It is also admitted fact that the cheques in question were handed over to the complainant by the said Inder Dev Sharma after duly filling up of the same. It is pertinent to mention herein that the cheques in question were CC No.1828/1 page no.10/14 pertaining to the account of M/s Bassomal Jagat Narain - Karta. It is not the case of the complainant that the accused has issued cheques on behalf of other person namely Bassomal Jagat Narain - Karta after availing the alleged friendly loan.
24. It is also established on record that the complainant was earning a salary of Rs. 9.10 per day in the year 1984 and his last salary in the year 2000 was about Rs.1500-1600/- only. Moreover, the family of the complainant consist of his wife and four children. Admittedly the complainant is sole bread earner in his family. Considering the facts and circumstances of the present case, it is highly improbable that an owner of cinema hall would approach a security guard who is having a meager salary. The complainant himself is not having sufficient means and capacity to give the alleged loan as he himself has to support a large family. Moreover, the complainant has not disclosed the exact date and time of the giving of alleged friendly loan to the accused. Furthermore, the accused has not furnished on record any documentary proof in the form of receipt, note, pronote etc to support his averments for the giving of alleged friendly loan to the accused. The complainant had not brought on record an iota of evidence in support of the alleged giving of loan to the extent of Rs. 1,15,000/- in cash to the accused. Moreover, on the other hand it is proved on record that the complainant was having very cordial relations with the said Jai Inder Dev Sharma. It is also brought on record that the said Jai Inder Dev Sharma did not have any child and wife of Jai Inder Dev Sharma had asked the complainant to give one of his childran to them. On this request the complainant had given his son Vikram Singh to live with the family of Jai Inder Dev Sharma around the year CC No.1828/1 page no.11/14 1993. Hence, the possibility of misuse of the cheques in question could not be ignored keeping in view the admissions on the part of the complainant and the divergent view of the entire alleged incident after the cross examination of complainant by the accused.
25. Although, the alleged defence of the accused that the cheque in question was not issued to the complainant has no force in the eyes of law. The another defene of the accused that he has not received the legal notice is also not sustainable as the legal notice was sent to the accused on his correct address which is not disputed by the accused during the entire trial and there is a presumption qua the service of the registered AD letter U/s 27 of the General Clauses Act. But, it is well settled law that in a criminal case, prosecution has to stand upon its own legs and it cannot take the advantage of the fact that accused has not led cogent defence evidence or accused is having a weak defence. The defence raised by the accused along with the evidence placed on record are cogent proof in support of the defence version makes it highly probable that the cheque in question was not issued towards the discharge of liability as alleged by the complainant and at the same time it weakens the foundation fabrics of the present complaint case. The suspicious circumstances rising in the present case will certainly give advantage to the accused. Moreover, the complainant has concealed the material facts from the court and had not come to the court with clean hands and his conduct is not of a prudent man. Hence, in the present case, the accused raises a cogent suspicious circumstances in the version of the complainant which belies the foundation of the present complaint case and same is sufficient to rebutt the presumption that the cheque in question was not for CC No.1828/1 page no.12/14 discharging the legal liability.
Conclusion
26. I have gone through the entire material on record carefully and heard the arguments advance by the counsel for parties at length. After analyzing the evidence led by the parties, I am of the opinion that accused has been successful in rebutting the presumptions under NI Act by raising cogent suspicion in the version of complainant and on the scale of preponderance of probabilities that the cheque in question may not be given to the complainant as alleged by him.
27. The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that Court must either believe the defence to exist or consider its existence to be reasonably probable. In the present case accused has not only been able to raise a probable defence and adduced sufficient evidence to prove his defence but also been able to succeed in shaking the very foundation of the fabrics of the case of the complainant.
28. Once the accused has discharged his initial burden of proving its defence the onus rebutted back on the complainant. However in the present case, complainant has miserably failed to prove the case beyond reasonable doubt.
CC No.1828/1 page no.13/1429. Therefore, from the above discussions, this court is of considered view that in the circumstances appearing from the record of the case, the accused is entitled to the benefit of doubt. Accordingly, the accused is entitled to be acquitted and hereby stands acquitted of the offence under Section 138 of Negotiable Instrument Act.
Announced in open court on SATVIR SINGH LAMBA
29th Day of July, 2013 MM-01(NI.ACT)WEST/DELHI
CC No.1828/1 page no.14/14