Delhi District Court
Bharat Barrel And Drum Manufacturing ... vs . Amin on 15 February, 2011
IN THE COURT OF SH. SACHIN GUPTA,
METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI.
CC No. 79/10
ID No. 02404R0018702008
Sohan Singh Panesar ......................... COMPLAINANT
VERSUS
Sunil Kumar Gola .......................... ACCUSED
JUDGMENT
1. Name of the Complainant : Sohan Singh Panesar,
S/o Late Sh. Bhagwan
Singh.
2. Name of the accused, parentage : Sunil Kumar Gola, S/o Sh.
and address: Ramesh Kumar, R/o
H.No. 61, Punjabi Colony,
Near Shani Mandir,
Narela, Delhi - 40.
3. Offence Complained of : Section138 Negotiable
or proved Instrument Act
4. Plea of accused : Pleaded not guilty
5. Date of institution of the case : 07.01.2008
6. Date of reserve for order : 31.01.2011
7. Final order : Acquitted
8. Date of final order : 15.02.2011
CC No. 79/10 1/11
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. Present is a complaint for offence under section 138 of the Negotiable Instrument Act (hereinafter referred to as the 'Act') with averments that accused being on friendly relations with complainant requested to give him a friendly loan of Rs. 5,00,000/(Five lakhs only) and thereupon complainant gave the said amount of Rs. 5,00,000/ to accused on 09.04.2005 with interest @ 24% per annum which accused assured to refund on or before 08.10.07(within two years) to the complainant. It is further stated that when complainant approached the accused on 08.10.2007 and asked to return said friendly loan alongwith interest, accused requested 20 days time for the repayment and issued a cheque bearing no. 305257 dated 27.10.07 for a sum of Rs. 5,00,000/ drawn on Bank of India, Narela Branch, Delhi in favour of complainant. When on 30/10/2007 complainant presented the aforesaid cheque to his banker for encashment, the same was dishonoured with remarks " No such Account". It is further stated that complainant thereafter got served upon the accused a legal notice dated 28.11.07 through his counsel but despite service of said notice, accused failed to make the payment to the complainant within statutory period of time. Complainant, thereafter, filed the present complaint wherein accused was summoned and notice for accusation was framed against the accused for offence u/s. 138 of the Act to which he pleaded not guilty and claimed trial.
CC No. 79/10 2/11
2. In post notice evidence, complainant examined three witness. CW1 is Sh. C.S. Ranga, computer operator, Bank of India, Narela Branch, Delhi who proved letter Ex. CW2/B by senior branch manager regarding the opening & subsequent closure of bank account by the accused and also the dishonour of the cheque in question with the reason " No Such Account". CW2 is Sh. Vinok Kumar, clerk of Corporation Bank, Narela Branch. This is again a formal witness who brought the account statement of complainant in respect of cheque in question which is Ex. CW3/B. CW3 is complainant himself who gave his evidence by way of affidavit (Ex. CW1) wherein he has deposed the same facts as stated in complaint and proved on record, the cheque in question Ex. CW1/A, cheque return memo Ex. CW1/B, legal demand notice Ex. CW1/C, courier consignment note Ex. CW1/D and P.O.D thereof as Ex. CW1/E. During cross examination, Complainant(CW3) said that he cannot tell the exact address of the accused. Complainant admitted that accused is not his friend rather the father of the accused is his friend. Complainant admitted that he himself mentioned his name, amount as well as date on cheque in question. Complainant further said that he cannot tell the denomination of the currency handed over to the accused. Complainant denied to the suggestion that cheque in question( Ex. CW1/A )was lost and the same was not handed over to him by accused.
3. In the statement of accused recorded u/s. 313 Cr. P.C code of Criminal Procedure, accused submitted that he never took any friendly loan of Rs. CC No. 79/10 3/11 5,00,000/ from the complainant and never issued cheque in question to complainant. Accused further submitted that in the year 2003 his cheque book was lost and a written complaint was made to the concerned bank in this regard and closed his account. Accused further denied that he received any legal notice.
4. Accused has examined two defence witnesses in support of his case. DW1 is accused himself where he deposed that he does not know the complainant and never had friendly relation with the complainant and never requested or received friendly loan of Rs. 5,00,000/ on 09.04.05 from the complainant. Accused stated that he never issued cheque Ex. CW1/A in favour of complainant. He further deposed that he closed his account with Bank of India, Narela Branch, Delhi after he lost his cheque book and a written complaint was given in this regard so there is no occasion to issue cheque in question to the complainant in 2007 as he had already lost it in 2003. During his cross examination, accused (DW1) denied friendly relation with the complainant and further denied receipt of any loan of Rs. 5,00,000/ from complainant. He denied his signatures, thumb impression on loan receipt dated 09.04.05. He further denied to suggestion that he helped the complainant in the riots of 1984.
5. DW2 is Sh. Ramesh Chand, father of the accused who deposed that he does not know the complainant and does not have friendly relationship with complainant. He further deposed that complainant never give any friendly loan to his son/accused and never issued cheque in question. During his cross CC No. 79/10 4/11 examination, DW2 said that he does not know complainant as never met him. DW2 further denied to suggestion that complainant gave a loan of Rs. 5,00,000/ to accused and denied a receipt dated 09.04.05 signed by accused in this regard.
6. I have heard the arguments advanced by the Ld. counsel for complainant as well as for accused. I have also carefully perused the record.
7. At the very outset, it is pertinent to mention that one of the essential ingredient for the offence u/s 138 of the Act is that there must be cheque drawn by drawer for payment of any amount of money to another for discharge in whole or in part any debt or other liability. In the present case, Complainant has stated in his affidavit Ex. CW1 that accused had friendly relations with him and he advanced friendly loan of Rs. 500000( Five Lakh) to the accused on 09/04/2005 with interest @ 24% per annum which was to repaid by the accused on or before 08/10/2007(with in two years).During his cross examination,complainant while contradicting himself stated that accused is not his friend rather the father of the accused is his friend. In para 1 of his cross examination, he stated " I am not friends with the accused, rather his father is my close friend". Complainant stated that he cannot tell the exact address of the accused. Complainant own denial of friendly relations with the accused cast a shadow on his case which is on the foundation of 'friendly loan' as allegedly given by the complainant to the accused. Document Ex CW 1/C is legal demand notice issued on behalf of the complainant to the accused. In the said notice at Para 2 it is stated that complainant extended CC No. 79/10 5/11 the said loan of rupees five lakh to the accused on his assurance that the said amount shall be repaid within a period of one year along with interest @ 24% P.A. while he has stated in his affidavit that accused assured him to refund the said loan on or before 08.10.07(within two years). Therefore the period of loan changed from 'one year' as alleged in Ex CW1/C to 'two years' as stated in the affidavit Ex CW1 thereby creating a serious doubt on the truthfulness and reliability of documents furnished and affidavit filed in support of his case.
8. In his cross examination,Complainant stated that he cannot tell the denomination of the currency handed over to the accused. It is very unlikely that a person who has landed money to the tune of rupees five lakhs is incapable of telling the denomination of currency notes handed over to the accused. Complainant admitted that he himself mentioned his name, amount as well as date on cheque in question and he is in business of advancing money at interest. Complainant has not proved any document on record in support of his claim of giving friendly loan to the accused rather denied friendly relations with the accused during his cross examination. One loan receipt dated 09/04/2005 has been referred by the complainant to the accused during his cross examination and the accused has denied his signature and thumb impression on the same. The said loan receipt has not been proved by the complainant and therefore the same can not be read into the evidence. Even otherwise if the said loan receipt is taken on the face of it, the same fails to support the case of complainant rather demolish the CC No. 79/10 6/11 stand of the complainant as per his own complaint and affidavit given in evidence. In the said loan receipt dated 09/04/2005, a different story is portrayed wherein period of friendly loan given to accused mentioned as two and half year without interest till 08/10/2007 and thereafter interest is to be chargeable @ 10% P.A. Further cheque in question was also allegedly handed over to complainant on 09/04/2005 itself. All these facts as stated in the above said receipt referred by complainant himself are in sharp contradiction and completely demolish his own case in view of entirely different version stated in para 1,2 and 3 of his affidavit wherein period of loan was two years with interest @ 24% P.A. starting from the date of loan and cheque in question allegedly issued on 08/10/2007. It is therefore clear that complainant has been inconsistent throughout, kept on changing stands and contradicted himself at number of times.
9. Accused when appeared as witness has denied any friendly relation with the complainant and receiving of any friendly loan of Rs. 5,00,000/ on 09.04.05 from the complainant. Accused stated that he never issued cheque Ex. CW1/A. He further deposed that he closed his account with Bank of India, Narela Branch, Delhi after he lost his cheque book and a written complaint was given in this regard so there is no occasion to issue cheque in question to the complainant in 2007 as he had already lost it in the year 2003.
10. It is pertinent to mention here that there are presumptions attached with negotiable instruments like cheque u/s 118 and 139 of the Act that every CC No. 79/10 7/11 negotiable instrument was made or drawn for consideration and that holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In M/s. Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518, The Hon'ble Supreme Court held in para 11 as under: Para 11. "The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and 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 nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor CC No. 79/10 8/11 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 to 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. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such 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 complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue".
CC No. 79/10 9/11 Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal AIR 1999 (SC) 1008, in para 12 Hon'ble Apex Court has held that " the defendant can prove the nonexistence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies......."
11. In the facts and circumstances of the case and settled preposition of law as discussed above, it is crystal clear that accused has been able to rebut the presumptions u/s 118 and 139 of the Act on account of inconsistent and self contradictory stand taken by the complainant time and again, contradictions as revealed in the cross examination of complainant and documents relied upon by him. The complainant kept on changing stand on every aspect of his case, may it be, friendly relations with the accused, friendly loan itself with interest, duration of such loan, interest chargeable on such loan,date when cheque allegedly handed over to the complainant and so on. Accordingly presumptions u/s 118 and 139 of the Act stands rebutted and onus shifts back to the complainant to prove that cheque was issued in discharge of debt and liability which he has miserably failed to prove.
CC No. 79/10 10/11
12. Having regard to the materials on record, complainant has failed to establish his case under Section 138 of the Act as required by law and, therefore, accused is acquitted in this case. Bail bond of accused stands cancelled and his surety bond stands discharged. File be consigned to Record Room.
Announced in the open court (SACHIN GUPTA)
on 15/02/2011 Metropolitan Magistrate
Rohini Courts, Delhi
CC No. 79/10 11/11