Delhi District Court
Puneet Sahrawat vs Udai Das on 9 October, 2023
IN THE COURT OF SH. BHARAT AGGARWAL,
METROPOLITAN MAGISTRATE-01, N.I. ACT,
SOUTH, SAKET COURTS, DELHI
CT Case no. 43705/19
PS - Malviya Nagar
u/s 138 of the Negotiable Instruments Act, 1881
Puneet Sahrawat Vs. Udai Das
JUDGMENT
A. SL. NO. OF THE CASE : 43705/19
B. DATE OF INSTITUTION : 16.12.2019
C. DATE OF OFFENCE : After 15th day of service of legal
demand notice issued by
complainant
D. NAME OF THE : Sh. Puneet Sahrawat
COMPLAINANT S/o Late Shri Swaroop Singh,
R/o House no. 44, Chirag Delhi
New Delhi
E. NAME OF THE ACCUSED : Shri Uday Das
S/o Shri Dulal Das
R/o 767 Top Floor
Chirag Delhi, New Delhi.
F. OFFENCE : u/s 138 NI Act
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 09.10.2023.
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused is produced before the court to stand trial for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 ("Act"). He was summoned by this court to face the trial vide order dated 21.10.2020.
2. Briefly stated, it is the case of the complainant that accused is known to the complainant and on or about October, 2018, the accused approached the complainant for a loan of Rs. 2,00,000/- to meet the expenses for his marriage in November, 2018 and he promised to repay the same within 6 months. It is alleged that complainant in November, 2018 advanced a loan of Rs. 2,00,000/- to the accused and thereafter, the accused started ignoring the complainant and on or about 18.07.2019, when the complainant visited the accused, he made a false complaint on 100 number and police took both the parties to the Police Station whereby accused admitted his liability and undertook to repay the loan amount on or before 15.09.2019. It is further alleged that accused issued a post-dated cheque bearing no. 000002 dated 09.10.2019 for a sum of Rs. 2,00,000/- in favour of the complainant drawn on HDFC Bank, Seikh Sarai, New Delhi (hereinafter referred to as 'cheque in question'). It is further stated that the cheque in question got dishonoured due to the reason 'Account Closed' vide returning memo dated 10.10.2019. It is further alleged by the complainant that accused did not repay the loan amount and he had an intention to cheat the complainant and accordingly a legal notice dated 02.11.2019 was issued to the accused which was delivered to him through Registered Post on 15.11.2019. It is the case of the complainant that despite receipt of the legal notice, the CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 2 of 21 accused did not deliberately make the payment and hence, the present complaint u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') has been filed.
3. The accused was summoned by this court to face trial for the offence punishable u/s 138 of NI Act. Thereafter, an application u/s 302 Cr. P. C. was moved on behalf of the wife of the complainant for her substitution in place of the complainant as the complainant had expired and vide order dated 06.05.2022, such application was allowed and notice was framed against the accused u/s 251 Cr. P. C.
4. In his defense at the stage of framing of notice , the accused stated that he knows the complainant and one day he noticed that his bank documents and property documents were missing and one on-line NCR was lodged by him regarding the same. He further stated that he closed the bank account and complainant has misused his cheque. He further stated that he has neither issued the cheque to the complainant nor he is liable to pay any amount to him. The accused stated that the cheque does not bear his signature and he has not received any legal notice.
EVIDENCE LED BY THE PARTIES:-
5. The wife of the complainant Ms. Reena Sahrawat was examined as CW1 in order to prove complainant's case. In her examination in chief, she relied upon and tendered her evidence by way of affidavit Ex. CW-1/1 and relied upon the following documents:-
CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 3 of 21 i. Ex. CW1/A is original cheque dated 09.10.2019 for an amount of Rs. 2,00,000/-
ii. Ex. CW1/B is original cheque returning memo dated 09.10.2019.
iii. Ex.CW1/C is legal notice dated 02.11.2019 u/s 138 of NI Act.
iv. Ex. CW1/D and Ex. CW1/E are the dispatch receipts of legal notice issued by the complainant.
v. Ex.CW1/F is tracking report in respect of the legal notice.
vi. Mark A is copy of undertaking/vada-nama dated 18.07.2019.
6. CW-1 was cross-examined by Ld. Counsel for the accused wherein she inter alia stated that she has no personal knowledge of the present case and she was present when the accused requested her husband for grant of loan of Rs. 2,00,000/-. She further stated that she does not know even if the marriage took place or not regarding which the loan was taken. She further deposed that her husband was a driver but they used to receive rental income of around Rs. 1,50,000/- from which the loan amount in cash was arranged. She further admitted that no loan agreement or receipt were executed between her husband and accused. She also admitted that the loan was not given by her husband to the accused in her presence. She further deposed that the loan amount was handed over by her husband in the office of one Mukesh. Further, regarding vada-nama/undertaking i.e. Mark A, she deposed that the same was not prepared in her presence and she is not aware regarding the details of the original of the same. She further admitted that the cheque in question was not signed by the accused in her presence and the same was not handed over by the accused to her CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 4 of 21 husband in her presence. No other witness was examined on behalf of the complainant.
7. Thereafter, on 11.10.2022, statement of accused u/s 313 Cr.P.C. was recorded wherein the accused reiterated his defence, taken by him at the time of framing of notice u/s 251 Cr.P.C.
8. In his defence, accused examined himself as DW1. On 11.11.2022, he was examined in chief, whereby he inter-alia deposed that certain property documents and bank documents were missing and he lodged a report dated 07.03.2019 on the on-line portal of Delhi Police i.e. Ex. DW1/1. He further deposed that after receipts of the summons from different courts, he lodged a police complaint dated 07.06.2022 i.e. Ex. DW1/2 to prevent misuse of his cheque. He further deposed the he has no liability towards the complainant and he never handed over any cheque in favour of the complainant.
9. DW1/accused was extensively cross-examined on behalf of the complainant whereby he admitted that in Ex. DW1/1, he has not specifically mentioned about the loss of the cheque in question. He further admitted that he did not mention in the same as to bank documents of which of his bank account were missing. Further, accused deposed that the signature appearing in his statement recorded u/s 313 Cr. P. C. is the signature which are reflected in his bank account. He further deposed that once the complainant asked him as to what happened to the loan given for CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 5 of 21 Rs. 4,00,000/- to which the accused questioned about the loan and went away. The accused further admitted that the address mentioned in the legal notice Ex. CW1/C is the correct address. Accused denied his signature on the undertaking/vada-nama i.e. Mark A.
10. Accused examined ASI Mukesh Kumar/summoned witness to prove the lost report bearing no. 788162/19 dated 07.03.2019 which was taken on record as Ex. DW2/1.
11. Accused also examined DW3 Mr. Girish, Manager of HDFC Bank, Seikh Sarai, who had brought the account opening form in respect of the account from which the cheque in question was issued. The account opening form was taken on record as Ex.DW3/1 (colly). DW3 was also cross-examined on behalf of the complainant. DW3 deposed in his cross-examination that he has not seen the original of Ex. DW3/1 (colly) and he admitted that the applicant can also change his signature after filling the account opening form.
ARGUMENTS ADVANCED BY PARTIES:-
12. Final arguments were heard on behalf of both the parties on 15.09.2023 and liberty was given to both the sides to file written submissions.
13. Ld. Counsel for complainant argued that the complainant advanced a loan of Rs. 2,00,000/- in cash to the accused upon his demand and the cheque CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 6 of 21 in question was given for repayment of the same. It was further argued that despite assurance of the accused, the cheque in question got dishonoured and the accused did not make any payment even though statutory legal notice was delivered upon him. He further argued that the accused admitted that the legal notice bears his correct address and accordingly, the service of legal notice upon the accused shall be considered to be admitted. Ld. Counsel for complainant further pointed out to the different signatures of the accused which are apparent on record from perusal of his statement recorded u/s 313 Cr. P. C, notice framed u/s 251 Cr. P. C., complaint given to police dated 07.06.2022 i.e. Ex. DW1/2, complaint given to police dated 08.08.2019 i.e. Mark B. Accordingly, it was argued that accused has been using different signatures in order to circumvent his liability towards the complainant.
14. Per contra, it was argued on behalf of the accused that there is no liability of the accused towards the complainant. It was further argued that the accused does not owe any legal liability towards the complainant and the cheque in question was lost by the accused which has been misused by the complainant. It was further argued that the cheque is neither signed by the accused nor it was ever issued to the complainant.
15. Ld. Defence counsel vehemently argued that through the evidence of DW3/Bank Manager and from the account opening form i.e. Ex. DW3/1, it has been proved that the cheque in question does not bear the signature of the accused and it has become apparent that the complainant has CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 7 of 21 misused the cheque. He further argued that CW1 has admitted that the cheque was never issued by the accused in her presence and she is not a witness of the entire transaction. Ld. Defense counsel further argued that the undertaking/vada-nama dated 18.07.2019 ie. Mark A has not been proved by the complainant and the same was never executed by the accused and does not bear his signature. Accused also took the defense that the complainant has failed to prove his capacity to advance loan of Rs. 2,00,000/- and despite stating that complainant had a rental income of Rs. 1,50,000/-, the same has not been proved on record by the complainant. Lastly, it was argued that the accused deserves to be acquitted as he has successfully rebutted the presumption in favour of the complainant.
DECISION AND FINDINGS THEREOF:-
16. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed. Section 138 of the Act provides as under:
Section 138.- Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 8 of 21 extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation -- for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
17. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled:
(A) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability;
(B) cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 9 of 21 (C) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (D) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (E) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Therefore, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
18. The Act raises two presumptions in favour of the holder of the cheque i.e., complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
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19. Analyzing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted as follows:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
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20. To put in nutshell, the law regarding the presumption for the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, that the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Act comes into play.
21. As per s. 139 of the Act it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the non- existence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", which means that the presumption under Section 139 is rebuttable. The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 12 of 21 question was issued by the accused in discharge, whole or in part, of any debt or other liability. If the accused is able to raise a probable defence, then the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant. For this purpose, the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him.
22. At the same time, it is clear that a bare denial of passing of 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 the consideration of which, the Court may either believe that the consideration and debt did not exist, or their non-existence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist. From the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, or by leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just need to create holes in the case set out by the complainant and create a reasonable doubt over the version put forth by the complainant.
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23. The primary defense of the accused in the present case is that certain documents including the cheque in question were lost regarding which a lost report dated 07.03.2019 i.e. Ex DW1/1 was also registered by him. It is his defense that the cheque in question does not bear his signature and the same was never handed over to the complainant.
24. Defense of the accused throughout has been that the cheque was never issued by him and does not even bear his signatures. To prove the same, he led the evidence of DW3 who has placed the account opening form i.e. Ex. DW3/1 in respect of the account from which the cheque was issued. The perusal of the same when compared with the cheque in question would reveal that the cheque does not bear the signatures of the accused maintained in his bank account which prima facie shows that the cheque in question was not executed by the accused hence, raising a probable defence in his favour for rebuttal of the presumption available to the complainant.
25. Even though, the complainant has contended that the signatures may be changed by the accused prior to the issuance of the cheque in question with his banker, yet the complainant has not proved the same on record which was specifically required considering the circumstances of the case. Accordingly, in view of the above, it can easily be deduced that the accused has successfully raised a probable defense in his favour.
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26. In such circumstances, in the opinion of this court, it was required from the complainant that he proves his case on record on the scale of beyond reasonable doubt that the cheque bears the signatures of the accused and it was issued towards an existing legal liability. The complainant has miserably failed to do so and such exercise was also mandated on record in light of the fact that none of the signatures of the accused brought on record either through the police complaints or other documents including statements given before the court, matches remotely with the signatures on the cheque in question. Ld. Counsel for the complainant argued that he signatures on the cheque in question may be compared with the complaints i.e. Mark A 1 and Mark B, however, the signatures on these documents also do not match with that on the cheque in question. Hence, one of the most essential ingredients of the offence prescribed under Section 138 of the NI Act has not been fulfilled in the present case.
27. This court is not oblivious of the fact that there exists a statutory presumption in favour of the complainant regarding existence of liability, however, it is well settled that such presumption is rebuttable in nature. Merely because the cheque was issued from an account maintained by the accused and the same got dishonoured would not invite the culpability under Section 138 of the NI Act and the complainant is required to prove his case on the scale of preponderance of probabilities. At this stage, it is relevant to reproduce the observations of the Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde [(2008) 4 SCC 54 :
(2008) 2 SCC (Cri) 166 : 2008 SCC OnLine SC 106], which are reproduced herein below:
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25.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.
31.The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32.An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
35.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 evidence 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.
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45.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 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.
28. Another essential aspect of the case is that the complainant has not led his evidence in the present case unfortunately due to his demise. The wife of the complainant/CW1 was rather examined as the only witness on behalf of the complainant to prove his case. It is well settled that merely because a witness tenders certain documents on record would not mean that documents are proved on record. The same are required to be proved in the manner prescribed under the Indian Evidence Act, 1872. Perusal of the cross-examination of the CW1/wife of the complainant would reveal that she has admitted that "it is correct that I have no personal knowledge of this case".
29. Further, during her cross-examination, she has also admitted that the loan amount was not given by her husband to the accused in her presence. She CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 17 of 21 has further deposed that "the cheque in question was not signed by the accused in my presence. The cheque in question was not handed over by the accused to my husband in my presence". Accordingly, such relevant and significant admissions on the part of the only prosecution witness would show that she was not very well aware of the entire transaction alleged by the complainant in the complaint. Albeit , CW1 has stated in her evidence by way of affidavit i.e. Ex. CW1/1 that she is well conversant with the facts and circumstances of the case, however, her cross-examination has revealed that she is neither a witness nor well conversant with the essential aspects of the complainant's case i.e. handing over of the loan of Rs. 2,00,000/- in cash by the complainant to the accused and the alleged repayment of the same by issuance of the cheque in question by the accused. This also takes relevance in light of the defence of the accused that the cheque neither bears his signatures nor was issued to the complainant.
30. It is trite law that complainant can be substituted or represented by a power of attorney holder for the purpose of leading evidence, however, such witness shall be well conversant with the facts and circumstances of the entire case and shall not be alien to the allegations in the complaint. At this juncture, it is relevant to reproduce the observations of the Hon'ble Supreme Court in this reagrd in A.C. Narayanan v. State of Maharashtra, [(2014) 11 SCC 790]
26.As noticed hereinabove, though Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217] relates to powers of power-of-attorney holder under CPC but it was concluded therein that a plaint by a CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 18 of 21 power-of-attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well- settled position that criminal law can be put in motion by anyone (vide Vishwa Mitter [Vishwa Mitter v. O.P. Poddar, (1983) 4 SCC 701 : 1984 SCC (Cri) 29] ) and under the statute, one stranger to transaction in question, namely, legal heir, etc. can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies (vide Ashwin Nanubhai Vyas v. State of Maharashtra [AIR 1967 SC 983 : 1967 Cri LJ 943 : (1967) 1 SCR 807] ). Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the court in order to prove the complaint, it is permissible for the power-of-attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power-of-attorney holder or legal representative(s) should have knowledge about the transaction in question so as to be able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to abovequoted reasons. Keeping these aspects in mind, in M.M.T.C. [M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 : 2002 SCC (Cri) 121] , this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of the NI Act.
....
.....
30. In the light of the discussion, we are of the view that the power-of-attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the NI Act. An exception to the above is when the power-of-attorney holder of the CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 19 of 21 complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the power-of-attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.
31. Thus, it can be inferred that CW1 in light of her deposition on 14.09.2022 that she is not a competent witness on behalf of the complainant. Even otherwise, her cross-examination has revealed that she does not possess complete knowledge regarding the primary allegations of the complainant made in the complaint and thus, her testimony has rather raised grave suspicion over the truthfulness of the allegations made in the complaint.
32. The most essential fact regarding advancement of loan by the complainant to the accused has also remained unproved on record. During her cross- examination, CW1 stated that the complainant never filed any ITR and the loan was given to the accused in cash. She further deposed that her husband/complainant was a driver and they used to receive rental income of around Rs. 1,50,000/- and the loan amount was arranged from such income. The complainant has not placed on record even a single document regarding the said loan transaction and her aforesaid cross-examination has created doubt over the case of the complainant as no proof of such rental income or the financial capacity of the accused to advance the loan CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 20 of 21 has come on record. In view of the specific questions regarding the capacity to advance loan, the burden was shifted upon the complainant to prove his capacity to advance loan of Rs. 2,00,000/- in cash especially in view of the admission that the complainant was a driver by profession and he never filed any ITR.
33. Upon comprehensive consideration of the evidence led on record, it appears that neither the signature of the accused on the cheque in question nor the existence of debt or liability has been proved on record by the complainant beyond reasonable doubt and accused has been successful in raising a strong suspicion over the case put forth by prosecution. Accordingly, in view of the above observations, I am of the considered opinion that the accused has rebutted the presumption in favour of the complainant and he has raised a probable defence. The complainant has not been able to prove his case beyond reasonable doubt against the accused and accordingly, the accused deserves to be acquitted.
34. Accordingly, this court hereby acquits the accused for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 in respect of cheque in question.
35. Copy of this judgment be given free of cost to the accused against receiving.
ANNOUNCED IN OPEN COURT (Bharat Aggarwal) Today i.e. 09.10.2023 MM-01/ N.I.Act/ South/Saket/Delhi Present judgment consists of 21 pages and each page bears my initials.
(Bharat Aggarwal) MM-01/ N.I.Act/ South/Saket/Delhi CT No. 43705/19 u/s 138 NI Act Puneet Sahrawat Vs. Uday Das Page no. 21 of 21