Delhi District Court
Mahak Pal Singh vs Rambir Singh Malik on 13 December, 2021
IN THE COURT OF SHRI ARUN KUMAR GARG, CHIEF
METROPOLITAN MAGISTRATE(NE):KARKARDOOMA
COURTS: DELHI
Ct. Case No: 61/2018
CNR No.: DLNE02-008603-2016
Mahak Pal Singh
S/o. Sh. Sahab Singh
R/o. H. No. 89, Gali No. 6,
H-Block, Ganga Vihar,
Delhi-110094 .....Complainant
Versus
Rambir Singh Malik
Prop. Of M/s. Mohit Bricks Field,
Off.:16/1, 2nd floor, B-Block,
West Jyoti Nagar, Delhi .....Accused
Offence Complained of or proved : Under section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 09.01.2018
Date of Institution : 12.01.2018
Date of reserving judgment/order : 30.11.2021
Final Order/Judgment : Acquitted
Date of pronouncement : 13.12.2021
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as the NI Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 1 of 18 Act) filed by the complainant against the accused Rambir Singh Malik Prop. of M/s Mohit Bricks Field.
2. The present complaint has been filed by the complainant against accused Rambir Singh Malik, Prop. of M/s Mohit Bricks Field on account of dishonour of two cheques bearing no. 258154 dated 08.11.2017 for a sum of Rs. 10,00,000/-, drawn on the bank account of M/s Mahesh Brick Field, maintained with Corporation Bank, Baghpat, UP and no. 231749 dated 20.11.2017 for a sum of Rs. 16,00,000/- drawn on the bank account of M/s Mohit Brick Field, maintained with Syndicate Bank, Baghpat, UP in favour of the complainant, allegedly in discharge of his liability towards the complainant against a loan of Rs. 26,00,000/-
received by the accused from the complainant in various installments between 12.12.2014 and 12.02.2015.
3. It is the case of complainant that the accused is running the business of making bricks under the name and style of M/s Mohit Bricks Field and M/s Mahesh Bricks Field at Baghpat UP and since the younger brother of the complainant has also been a partner of the complainant in the aforesaid business, the accused was on visiting terms with the complainant. It is further the case of the complainant that in the month of November, 2014, the accused had approached the complainant with a request for a friendly loan of Rs. 26,00,000/- which he required urgently for his business of bricks to which the complainant agreed. Thereafter, according to him, he had given a sum of Rs. 3,00,000/-, Rs. 7,00,000/-, Rs. 11,00,000/- and Rs. 5,00,000/- to the accused on 12.12.2014, 25.12.2014, 29.01.2015 and 12.02.2015 respectively, whereafter, the accused had agreed to repay the entire loan within a period of two years. Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 2 of 18
4. It is further the case of complainant that in the month of March 2017, the accused had sought six months more time to repay the said loan and finally in the month of September 2017, at the request of complainant, the accused issued two cheques bearing no. 258154 dated 08.11.2017 for a sum of Rs. 10,00,000/- drawn on Corporation Bank, Baghpat, UP and 231749 dated 20.11.2017 for a sum of Rs. 16,00,000/- drawn on Syndicate Bank, Baghpat, UP in favour of the complainant in discharge of his aforesaid liability towards the complainant. The first of the aforesaid cheques, according to the complainant, was dishonored vide return memo dated 08.12.2017 with the remarks "funds insufficient". Upon receipt of information from the complainant, accused requested the complainant to present the cheques once again, whereafter, both the cheques were again presented by the complainant and the same were dishonored with remarks "funds insufficient" vide return memos dated 14.12.2017 and 15.12.2017.
5. Since, according to the complainant, the accused has failed to make the payment towards the cheques in question despite service of legal notice of demand dated 21.12.2017 through courier and speed post, he has committed the offence u/s 138 of the Negotiable Instruments Act. The complainant has thus filed the present complainant seeking prosecution of the accused for the offence u/s. 138 of the NI Act.
6. On receipt of the complaint, cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken and accused was summoned vide order dated 31.01.2018. The accused appeared on 11.09.2019 and was admitted to bail. Separate notice u/s 251 Cr.P.C., explaining accusations against the accused u/s 138 of the NI Act, was Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 3 of 18 subsequently served upon the accused and plea of the accused was recorded on 14.02.2020. The accused did not plead guilty and claimed trial.
7. Thereafter, on oral submissions of the accused, he was allowed to cross-examine the complainant in terms of Section 145(2) of the NI Act vide order dated 14.02.2020. CW1 was duly cross examined by Ld. Counsel for accused on 19.03.2021. It is pertinent to note here that in view of the judgment of Hon'ble Delhi High Court in Rajesh Aggarwal v. State, it is not necessary to examine the complainant's witnesses afresh after summoning of the accused, if their affidavits are already on record, though the Court shall recall them for cross examination on an application in this regard, if any, moved by the accused. Thus the pre- summoning evidence by way of affidavit of the complainant could be read against the accused and there was no need for examination of CW-1 afresh. The aforesaid affidavit, filed by CW-1 at pre-summoning stage, is Ex. CW-1/A, in which CW-1 has relied upon the following documents:
Ex.CW1/1: Original cheque bearing no. 258154 dated
08.11.2017 for a sum of Rs. 10,00,000/-, drawn on the bank account of M/s Mahesh Brick Field, maintained with Corporation Bank, Baghpat, UP, in favour of the complainant. Ex.CW1/2: Original Cheque bearing no. 231749 dated 20.11.2017 for a sum of Rs. 16,00,000/- drawn on the bank account of M/s Mohit Brick Field, maintained with Syndicate Bank, Baghpat, UP, in favour of the complainant Ex. CW1/3: Original Cheque return memo dated 08.12.2017. Ex. CW1/4: Original Cheque return memo dated 15.12.2017. Ex. CW1/5: Original Cheque return memo dated 14.12.2017. Ex. CW1/6:Office copy of Legal notice dated 21.12.2017.
Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 4 of 18 Ex. CW1/7: Original postal receipt regarding dispatch of legal notice Ex. CW-1/6.
Ex. CW1/8: Original courier receipt regarding dispatch of legal notice Ex. CW-1/6.
Ex. CW1/9: Internet generated delivery report of legal notice through speed post.
Ex. CW1/10: Copy of statement of bank account of complainant.
8. After cross examination of CW-1, since no other witness was examined by the complainant, CE was closed vide order dated 19.03.2021 and matter was fixed for recording of statement of accused u/s. 313 Cr.P.C. Thereafter, accused was examined under Section 313 Cr.P.C. on 26.03.2021, wherein, the accused denied any personal relations as well as taking of any loan by him from the complainant. He has also denied having issued the cheques in question in favour of the complainant. According to him, the brother and nephew of the complainant were his business partners and cheques of the accused were lying at his bhatta (brick-kiln) and in the year 2017 he had left for his native place after closure of his Bhatta. He has further alleged that he had been falsely implicated in the present case. He has also denied the receipt of legal notice. Accused chose not to lead any evidence in his defence and as such the matter was fixed for final arguments. Final arguments were heard on behalf of both the parties on 09.10.2021.
9. Subsequently, an application was moved by the complainant for impleadment of M/s Mahesh Brick Field as an accused in the present case, which was dismissed vide order dated 30.11.2021.
10. On the basis of rival contentions of the parties, the following Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 5 of 18 questions arise for determination by this Court-
(a) Whether the complaint is liable to be dismissed for want of impleadment of M/s Mahesh Brick Field as an accused in the present case?
(b) Whether the cheques in question were issued by the accused in favour of complainant in discharge of his legally enforceable liability towards the complainant?
I shall deal with both the aforesaid questions one by one in the following paragraphs.
(a) Whether the complaint is liable to be dismissed for want of impleadment of M/s Mahesh Brick Field as an accused in the present case?
11. It is contended by Ld. Counsel for accused that as per the averments made in the complaint, the accused had been running the business of brick-kiln in partnership with the younger brother of the complainant, however, the complainant has failed to implead the partnership firm as an accused in the present case despite the fact that one of the cheques i.e. the Cheque Ex. CW-1/1 had apparently been signed by the accused as the partner of M/s Mahesh Brick Field. Thus, according to him, the present complaint against the accused without impleadment of M/s Mahesh Brick Field is liable to be dismissed in view of authoritative pronouncement of Hon'ble Supreme Court of India in Aneeta Hada v. M/s Godfather Travels & Tours Pvt. Ltd. (2012) 5 SCC 661.
12. On the other hand, it has been submitted by counsel for complainant that the present complaint has been filed by the complainant against the accused in respect of two cheques, one of which one cheque Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 6 of 18 i.e. the cheque Ex. CW-1/2 has been drawn by the accused from the bank account of his sole proprietorship firm M/s Mohit Brick Field and hence the present complaint, at least, qua the said cheque Ex. CW-1/2 is not only maintainable but in view of the fact that the complainant has been able to prove its case against the accused beyond reasonable doubts, the accused is liable to be convicted for the offence u/s 138 of the NI Act, at least in respect of the aforesaid cheque.
13. I have heard the submissions made on behalf of the parties and have also perused the record. A bare perusal of the record shows that the present complaint has been filed by the complainant alleging dishonour of two cheques Ex. CW-1/1 and Ex. CW-1/2 for a sum of Rs. 10,00,000/- and Rs. 16,00,000/- respectively. First of the aforesaid cheque has been drawn by the accused on the bank account of M/s Mahesh Brick Field, a partnership firm, whereas the second cheque has been drawn upon the account of his proprietorship firm M/s Mohit Brick Field.
14. So far as the first cheque Ex. CW-1/1 is concerned, in my considered opinion, the present complaint against the accused in respect of the said cheque is not maintainable in view of the authoritative pronouncement of Hon'ble Supreme Court of India in Aneeta Hada v. M/s Godfather Travels & Tours Pvt. Ltd. (2012) 5 SCC 661 since the complainant has failed to implead the partnership firm as an accused in the present case.
15. In fact, finding the aforesaid lacunae in his case, the complainant had made a desperate attempt to array the partnership firm as an accused in the present case by moving an application on 22.10.2021, which was dismissed by this Court vide order dated 30.11.2021, while relying upon Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 7 of 18 the judgment of Hon'ble Supreme Court in N. Harihara Krishnan v. J. Thomas (2018) 13 SCC 663.
16. No doubt, the second cheque Ex. CW-1/2 has been issued by the accused as the sole proprietor of M/s Mohit Brick Field and the present complaint has also been filed by the complainant against the accused in his capacity as the proprietor of M/s Mohit Brick Field, however, it is significant to note that before filing of the present complaint, the complainant has served a single demand notice upon the accused in his capacity as sole proprietor of M/s Mohit Brick Field demanding the payment of both the cheques i.e. of Rs. 26,00,000/-. It is settled legal position that the cause of action for filing of the complaint u/s 138 of the NI Act does not arise unless and until the drawer/accused fails to make the payment of cheque amount despite expiry of 15 days from the date of service of legal notice of demand in terms of proviso(b) to Section 138 of the NI Act.
17. It has been authoritatively held by Hon'ble Supreme Court in a number of cases that a notice, if any, served upon the accused, raising a demand of more than the cheque amount, shall not be a valid notice within the meaning of Proviso(b) to Section 138 of the NI Act and a complaint based on the said notice shall not be maintainable u/s 138 of the NI Act. As has already been observed herein above, the complainant in the present case has served the legal notice Ex. CW-1/6 upon the accused in his capacity as proprietor of M/s Mohit Brick Field while raising a demand clubbing his liability in another capacity i.e. as partner of M/s Mahesh Brick Field, which renders the aforesaid notice invalid.
18. Thus, in my considered opinion, the present complaint u/s 138 of Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 8 of 18 the NI Act against the accused as proprietor of M/s Mohit Brick Filed is not maintainable for non-compliance of demand of complainant vide legal notice Ex. CW-1/6. The first question is thus answered in the affirmative.
(b) Whether the cheques in question were issued by the accused in favour of complainant in discharge of his legally enforceable liability towards the complainant?
19. Before adverting to the facts of the case in hand, it would be pertinent to reproduce the relevant provisions of Section 138, 139 and Section 118(a) and (b) of the Negotiable Instruments Act at the very outset, which read as follows:-
"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 provision of this Act, be punished with imprisonment for a term which may be 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;
Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 9 of 18
(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."
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 the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
118. Presumption 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;
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;"
20. Issue regarding the scope of presumptions u/s 118(a) and u/s 139 of the NI Act has come up for consideration before the Hon'ble Supreme Court in a number of cases. There is no doubt about the settled legal position that once the signatures on the cheque are admitted by the drawer of the cheque, there arises a presumption in favour of the Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 10 of 18 payee/holder in due course in terms of Section 139 and 118 (a) of the Negotiable Instruments Act that the cheque has been issued for consideration and in discharge of a legally enforceable debt or liability. Although in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (SC)2008(1)R.C.R.(Criminal) 695, Hon'ble Supreme Court has held that
a) the presumption does not go to the extent of presuming the existence of debt and b) the aforesaid presumption is rebuttable in nature, however, a three judge bench of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) 11 SCC 441, has overruled the first of the aforesaid proposition while holding that the presumption u/s 139 of the NI Act, though rebuttable, goes to the extent of even presuming the existence of a legally enforceable debt.
21. In M.S. Narayana Manon V. State of Kerala & Another AIR 2006 SC 3366, it has been held that for rebuttal of the presumptions, it is not necessary that the accused must step into the witness box but the presumptions can be rebutted either by cross examination of the complainant's witnesses or even by raising presumptions of fact or law from the material available on record as held in Kundan Lal Rala Ram V. Custodian Evaccue Property, reported as AIR 1961 SC 1316).
Moreover, standard of proof, for rebuttal of presumptions by any person accused of an offence under Section 138 of the Negotiable Instruments Act, is preponderance of probabilities and accused is not liable to prove his defence beyond reasonable doubts. On the other hand, bare denial or bald suggestions give by the accused would not be sufficient to rebut the aforesaid presumptions. Thus, whether the presumption has or has not been rebutted depends upon the facts of each case to be analyzed in the Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 11 of 18 light of aforesaid legal principles.
22. It has been contended by the Ld counsel for the complainant that since the accused has admitted his signatures on the cheques Ex. CW-1/1 and Ex. CW-1/2, there are sufficient grounds to raise presumptions under Section 118(a) and 139 of the NI Act in favour of the complainant that the cheques in question were issued by him in discharge of his legally enforceable liability towards the complainant. It is further submitted by him that the accused has failed to rebut the aforesaid presumptions and has rather taken contradictory pleas in his defence at different stages of the trial. He submits that the accused has failed to step into the witness box to prove either of the aforesaid pleas.
23. Besides, according to him, even independent of the aforesaid presumptions, the complainant has proved all the ingredients of offence u/s 138 of the NI Act beyond reasonable doubts, through his uncontroverted testimony which has been duly corroborated by documentary evidence Ex. CW-1/1 to Ex. CW-1/10. He submits that merely grant of loan by the complainant in cash and non execution of any agreement at the time of grant of the said loan by itself is not sufficient to rebut the said presumptions arising in favour of the complainant. It is further submitted by Ld. Counsel for complainant that mere non mentioning of the loan by the complainant in the ITR is also not sufficient to rebut the aforesaid presumptions arising in favour of complainant, in as much as, the aforesaid matter is between the complainant and the Income Tax department and accused can't be permitted to take benefit of the aforesaid omission on the part of complainant to avoid his liability towards the complainant. Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 12 of 18
24. It is further submitted by him that the accused has failed to cross- examine the complainant as to his financial capacity to grant loan to the accused and even otherwise, the complainant has been able to prove his financial capacity through the passbook Ex. CW1/10. He further submits that had there been any truth in the plea of accused regarding misuse of the cheques in question by the complainant, not only, he would have lodged a police complaint against the complainant but he would also have issued stop payment instructions to his banker in respect of the cheques in question. Thus, according to him, the accused has failed to rebut the presumptions arising in favour of complainant, while the complainant has proved its case against the accused beyond reasonable doubts. He has thus prayed for conviction of the accused for the offence u/s 138 of the NI Act, at least in respect of the cheque Ex. CW-1/2. In support of his aforesaid submissions, Ld. Counsel for complainant has relied upon the following judgments:-
i) Rangappa v. Sri Mohan (2010) 11 SCC 441.
ii) Bir Singh v. Mukesh Kumar 2019(1) CCC 580 (SC)
iii) APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers & Ors. 2021(1) JCC 43 (SC)
iv) Vijender Singh v. Eicher Motors Limited & Anr. 2011 SCC OnLine Del 2095
v) Krishna P. Morajkar v. Joe Ferrao & Anr. 2013 SCC OnLine Bom 862
vi) Hiten P. Dalal v. Britendranath Banerjee (2001) 6 SCC 16
25. On the other hand, it is submitted by counsel for the accused that the accused has denied his liability towards the complainant in his plea u/s 251 Cr.P.C. and has denied issuance of cheques in question at all Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 13 of 18 stages of the trial and despite that the complainant has failed to prove either the liability of accused towards the complainant to the extent of the cheques amount or the issuance of cheques in question by the accused in favour of the complainant by leading any cogent evidence. He submits that the complainant has failed to examine the purchaser of his alleged property, from whom he had allegedly received the money for grant of loan to the accused, as a witness in support of his case, nor has he examined his wife or his daughter in law as a witness despite the fact that the loans were allegedly given by him to the accused in their presence.
26. He submits that it is reasonably improbable that a businessman will take a loan of the huge amount to the tune of Rs. 26,00,000/- in cash and repay the same by way of cheques. He submits that the complainant has failed to explain as to why he had given a huge loan of Rs. 26,00,000/- in cash to the accused, if he had the aforesaid amount available in his bank account. He further submits that an adverse inference needs to be drawn against the complainant for non-production of his ITRs. Under the aforesaid facts and circumstances, according to him, the accused has been able to rebut the presumptions, if any, arising in favour of the complainant on the touchstone of preponderance of probabilities. He has thus prayed for acquittal of the accused while relying of the following judgments:-
i) C. Antony v. K.G.Raghavan Nair 2003(1) JCC (NI) 41
ii) Pradeep Kumar verma v. Aparna Mehra & Anr. 217(2015) DLT 420
iii) Laxmandas v. Amar Rochwani 2007(1) DCR 595
iv) Proddaturi Shobha Rani & Anr. v. State of A.P. and Anr. 2020 SCC Online AP 108 Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 14 of 18
v) Rangabashyam v. Ramesh 2019 SCC Online Madras 17188
vi) N. K. Bhagat & Anr. v. Biswanath Dey 2019 SCC Online Cal 326
vii) Murjibhai Vishram Varsani v. Adam Alimamad Kumbhar & 1 R/Cr.MA/11911/2015 decided on 02.02.2017 by Hon'ble Gujarat High Court
viii) N. Elangovan v. C. Ganesan 2014 SCC Online Mad 8704
ix) Devender Kumar v. Khem Chand (2015) 223 DLT 419
27. I have given a thoughtful consideration to the submissions made on behalf of both the parties and to the entire material available on record in the light of legal principles quoted in para 20 and 21 of this judgment. I have also gone through the judgments relied upon by Ld. Counsels for both the parties. In none of the judgments relied upon by the parties any principle contrary to the principles quoted herein above in para nos. 20 and 21 of this judgment have been laid down and merely different conclusions have been arrived at while applying the aforesaid principles based on peculiar facts and circumstances of each case.
28. In the case in hand, so far as the cheque Ex. CW-1/1 is concerned, it has already been observed that the said cheque was drawn by the accused on the bank account of his partnership firm and the complaint qua the same is liable to be dismissed for want of impleadment of partnership firm as an accused in terms of Section 141 NI Act. It has been contended by Ld. Counsel for complainant that the complaint is maintainable at least qua the second cheque Ex. CW-1/2. Although, the aforesaid plea of the complainant has already been rejected after detailed discussions on the first question noted herein above, however, considering the fact that the counsel for complainant has also advanced Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 15 of 18 arguments on merits qua the cheque Ex. CW-1/2, the Court shall proceed to deal with all his contentions as well as contentions of Ld. Counsel for accused on merits qua the aforesaid cheque.
29. It is significant to note that as per averments made in the complaint, the accused had approached the complainant for a friendly loan of Rs. 26,00,000/- somewhere in the month of November 2014 and the loan has subsequently been granted by the complainant to the accused in cash in four installments between December 2014 and February 2015. Out of the aforesaid amount of Rs. 26,00,000/-, according to the complainant, a sum of Rs. 19,00,000/- was apparently given by him to the accused after withdrawal from his bank account, whereas, as per his testimony during his cross-examination, the sum of Rs. 7,00,000/- was arranged by him from his friend Inderpal, who has already been expired.
30. A bare perusal of the passbook Ex. CW-1/10 shows that the amount of Rs. 19,00,000/- was withdrawn by the complainant from his bank account through self cheques. Admittedly, no document was executed between the parties at the time of grant of any of the said loans. Although, it has been deposed by the complainant, during his cross examination, that the lonas were given by him to the accused in the presence of his wife and daughter in law, however, the complainant has failed to examine any of the said witnesses.
31. The complainant has failed to explain as to why he had given the said loan to the accused in cash, if the same was available in his bank account, since he could have very well given the said loan to the accused through cheques. Though, each of the the aforesaid facts, individually, would not have been sufficient to rebut the presumption, arising in favour Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 16 of 18 of complainant in terms of Section 118 and 139 of the NI Act, however, the aforesaid fact of non-grant of loans by him through cheques or bank transfers, coupled with the fact of non-reflection of the aforesaid amount by the complainant in his books of accounts or for that mater in his ITRs, non-examination of his wife and daughter in law in whose presence the loans were allegedly given by him to the accused, non-disclosure of the fact regarding grant of the said loans by him to his brother and nephew (who were admittedly the partners of the accused in his business of brick kilns) and grant of such a huge loan by him to the accused without insisting for any security despite the fact that he had admittedly no previous financial transactions with the accused, in my considered opinion, are sufficient to rebut the aforesaid presumptions arising in favour of the complainant, more so, when as has already been observed herein above, for rebuttal of the aforesaid presumptions, the accused was not required to step into the witness box and could have rebutted the said presumptions not only through cross-examination of the complainant but also while relying upon the material produced by the complainant.
32. It is settled legal position that in a criminal complaint, the case of the complainant must stand on its own legs and the complainant can't be permitted to take the benefit of deficiencies, if any, in the defence of accused. Thus, even if it is assumed for the sake of arguments that the accused had taken somewhat contradictory pleas in his defence at different stages of the trial, the complainant can't be permitted to take the benefit of the said contradictions, in view of the fact that he has failed to prove his case against the accused beyond reasonable doubts despite rebuttal of the initial presumptions arising in favour by the accused on the Mahak Pal Singh v. Rambir Singh Malik Judgment dated 13.12.2021 Comp. Case No. 61/2018 Page 17 of 18 touchstone of preponderance of probabilities. The second question is thus answered in the negative.
33. In view of the aforesaid discussion and answers to the two questions posed herein above, in my considered opinion, the complainant has failed to prove all the facts, required to secure conviction of the accused for the offence u/s 138 of the NI Act, beyond reasonable doubts. The accused is thus entitled to be acquitted and is hereby acquitted of the charge u/s 138 of the Negotiable Instruments Act, 1881.
34. Ordered accordingly.
35. Accused has already furnished PB and SB in sum of Rs. 20,000/- each in terms of provisions of Section 437-A of Cr.P.C. on 05.04.2021 and the same shall remain in force for a period of six months from today. Announced in the Open Court on this 13h day of December, 2021. This Judgment consists of 18 signed pages.
ARUN Digitally signed
by ARUN KUMAR
KUMAR GARG
Date: 2021.12.13
GARG 18:08:25 +0530
(ARUN KUMAR GARG)
Chief Metropolitan Magistrate(North East)
Karkardooma Courts, Delhi/13.12.2021
Mahak Pal Singh v. Rambir Singh Malik
Judgment dated 13.12.2021
Comp. Case No. 61/2018 Page 18 of 18