Delhi District Court
Attik Ur Rehman vs . Manish Dagar on 16 August, 2021
IN THE COURT OF SH. RAHUL JAIN, METROPOLITAN MAGISTRATE,
DWARKA COURTS, DELHI
C.C No. 4994012/16
ATTIK UR REHMAN VS. MANISH DAGAR
SH.ATTIK UR REHMAN
S/o Sh.Abdul Rehman
R/o Shop at RZF-81,
Gali No. 14/5, Sadh Nagar,
Palam Colony, New Delhi-110045.
...............Complainant
Versus
SH.MANISH DAGAR
S/o Lt.Dharamveer Singh Dagar
R/o H. No. 45, Dagar Niwas,
Near Primary School, Bindapur Gaon,
Uttam Nagar, New Delhi-110059.
............Accused
Date of Institution : 27.10.2014
Plea of the accused : Pleaded Not Guilty
Date of Reserving Judgment : 13.07.2021
Date of Judgment : 16.08.2021
Decision : Acquitted
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE :-
1. By way of the present judgment, I shall decide the complaint case U/s 138 of the Negotiable Instruments Act, 1881 (hereinafter said as the NI Act) filed by the complainant ATTIK UR REHMAN against the accused MANISH DAGAR.
FACTUAL MATRIX :
2. The factual Matrix of the present complaint case is that the accused approached the complainant at his shop for seeking friendly loan of Rs. 3,70,000/- in C.C No. 4994012/16 Page No. 1 RAHUL Digitally signed by RAHUL JAIN JAIN 14:42:53 +05'30' Date: 2021.08.16 the month of March , 2014 which he promised to pay within 3 months. That the accused failed to repay the loan at the end of three months and sought 2 months extension. After the lapse of the extended 2 months period accused issued a cheque bearing no. 025434 amounting to Rs. 3,70,000/- dated 20.08.2014 drawn on ICICI bank which got dishonored vide cheque returning memo dated 22.08.2014 on account of " Funds Insufficient". Thereafter, legal demand notice was served upon the accused but he failed to make the payment within 15 days. Hence, the present complaint was filed.
3. After the complaint was filed, the complainant examined himself in Pre-
summoning evidence and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Ld. Predecessor Court vide order dated 02.03.2015. On appearance of the accused a separate notice U/s 251 of the Criminal Procedure Code (herein after said "the Code") dated 04.01.2016 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity was granted to the accused by the court for cross examination of the complainant's witnesses vide order dated 04.01.2016.
COMPLAINANT'S EVIDENCE
4. The complainant examined himself as CW-1 & tendered her evidence by way of affidavit Ex. CW1/A reiterating the contents of the complaint. The complainant also relied upon the documents Ex. CW1/1 to CW1/4.
5. The complainant was duly cross examined by the Ld. counsel for the accused and the statement of the accused was recorded on 26.11.2016.
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by RAHUL JAIN
Date:
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STATEMENT OF ACCUSED U/S 313 OF THE CODE OF CRIMINAL PROCEDURE
6. In the statement of the accused recorded u/s 313 of the Code the accused denied any liability towards the complainant and stated that the complainant had misused the cheque in question. He further stated that the cheques in question were given to complainant as security who was running a committee.
DEFENCE EVIDENCE :
7. In support of his claim, the accused examined examined himself as DW-
1. Accused also examined 2 more witnesses in his defense as DW-2 who was his friend and a committee member and DW-3 who was a handwriting expert. . After cross examination of the witnesses the defence evidence was closed vide order dated 19.02.2020 after recording of the statement of the accused to this effect and the matter was fixed for final arguments.
FINAL ARGUMENTS :
8. Both the parties had filed written submissions.
9. Final arguments were addressed by both the parties. I have heard Ld. Counsels for both the parties and have perused the entire record of the case file alongwith the written submissions. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"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 while 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 C.C No. 4994012/16 Page No. 3 RAHUL Digitally signed by RAHUL JAIN JAIN 14:43:37 +05'30' Date: 2021.08.16 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 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.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
10. Learned counsel for the complainant, argued that the complainant had granted a friendly loan of Rs. 3,70,000 to the accused and the accused had issued the cheques in question towards discharge of his legal liability. Learned counsel further contended that the version of the accused has not been substantiated by any evidence to stand up for and bolster the same. It is also argued by the Ld. Counsel that the accused has miserably failed to disprove the presumptions under Section 139 and 118 (a) NI Act. He further argued the plea of defence raised by accused is far from the touchstone of preponderance of probabilities. Accordingly, learned counsel prayed that the accused be convicted for the offence under section 138 NI Act.
11. Per contra, learned counsel for the accused argued that the accused owes no legal liability towards the complainant. He further argued that the accused did not know the complainant and the accused had not taken any loan of Rs.3.70 lacs C.C No. 4994012/16 Page No. 4 RAHU Digitally signed by RAHUL JAIN Date:
L JAIN 2021.08.16 14:44:01 +05'30' from the complainant. He further argued that the accused had given the cheque in question to the complainant qua committee run by him and that he has misused the cheques in question in connivance with the complainant. Accordingly, he submitted that the complaint being a false one, the accused is entitled to be acquitted.
12. In the instant case, perusal of the file and entire evidence reveals that a single defence has been taken by the accused that the accused has not issued the cheque in question Ex. CW1/1 to the complainant in discharge of any legal liability but as security in the committee business run by the complainant.
13. Before I advert to the line of defence taken by the accused it is imperative for me to go through the provisions of Sections 118 (a) and 139 of the N.I Act which read as under:
"118. Presumptions as to negotiable instruments.-- Until the contrary is proved, the following presumptions shall be made
(a) of consideration.--that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
"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."
14. It is trite law that once execution of the promissory note is admitted as has happened in the case in hand, the accused specifically admitting his signatures on the cheque in question, the presumption under Section 118(a) and Section 139 of the NI Act would arise that it is supported by a consideration. Such a presumption is rebuttable in nature. The accused can prove the nonexistence of a consideration by raising a probable defence. If the accused discharges the initial onus of proof by showing that the existence of consideration was improbable or doubtful or the same C.C No. 4994012/16 Page No. 5 RAHUL Digitally signed by RAHUL JAIN JAIN 14:44:21 +05'30' Date: 2021.08.16 was illegal, the onus would shift to the complainant 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 accused 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. In case, where the accused fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) and Section 139 of the NI Act in his favour.
15. Also, in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan [1999 (4) RCR (Criminal) 309], it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
16. Coming to the case in hand, in the instance case, it is the case of the complainant that the complainant had granted a friendly loan of Rs.3.70 lacs to the accused and in order to discharge the liability, the accused had issued the cheque in question Ex. CW1/1 which had been dishonored and has formed the subject matter of the present case.
17. The accused has denied the claim of the complainant throughout the trial. At the time of framing of notice the accused denied the receipt of legal demand notice and further denied that he had any legal liability towards the compainant. The C.C No. 4994012/16 Page No. 6 RAHU Digitally signed by RAHUL JAIN Date:
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accused however admitted the signature on the cheque in question and stated that the complainant had misused the cheque in question.
18. At the time of recording of statement u/s 313 of the Code, the accused again denied the liability towards the complainant and reiterated that the cheque in question has been misused by the complainant. The accused further stated that the present case is wrongly instituted against him. The accused further stated that the cheque in question were given to the complainant, who was running a committee as a security.
19. In Kumar Exports vs. M/s Sharma Carpets, (2009) 2 SCC 513, it was held by the Apex Court that mere denial of existence of debt will not serve any purpose but accused may adduce evidence to rebut the presumption.
It was held as under:
"20. 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 non-existence 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 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. 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 non-existence 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 C.C No. 4994012/16 Page No. 7 RAHU Digitally signed by RAHUL JAIN Date:
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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."
20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
21. But first things first, for any prosecution case to stand on its own legs, it must pass through the rigourous test of cogency, reasonability and lucidity. The accused in his defence has the right to find loopholes in the case of the complainant. In the present case, the likelihood or probability of the truthfulness of the story of the complainant is seriously doubted and the accused has, by leading his evidence has highlighted the lacuna in the story of the complainant and thus rebutting the legal presumption available to the complainant with respect to the existence of legal liability. Further, admittedly, the complainant has reflected the said transaction in the Income Tax return. The accused has challenged the financial capacity of the complainant during his cross examination. Further, he crossed the complainant on a slip of balance amount pending on his behalf which is allegedly written by the C.C No. 4994012/16 Page No. 8 RAHUL Digitally signed by RAHUL JAIN JAIN Date: 2021.08.16 14:45:29 +05'30' complainant exhibited as CW1/D1. The complainant denied the same was in his handwriting. He also denied the suggestion put to him that the accused is only having Rs. 63,020/- liability towards him as mentioned in the alleged balance of amount slip Exhibit CW1/D1.
22. Secondly, the accused in defence has been consistent in his story that the complainant run committee and he being member of the same had deposited 2 security cheques. Out of which the cheque in question was misused by the complainant. Accused was sufficiently cross examined wherein he maintained his story. He further explained in detail how the committee was run wherein 2 security cheques used to be taken by the complainant from the members whenever a fresh committee was started. He further named another member of the committee Chavi Ram who also is DW-2 and corroborated the testimony of the accused. He stated that alleged balance of amount slip Ex. CW1/DW1 was given in his presence by the complainant to the accused and that the complainant had told the accused he had a liability of Rs. 63,000/- approx. which further corroborated the story of the accused as this being direct evidence is admissible in court of law. He was put to the test during his cross examination and did not deter from his stance. He further corroborated the fact as stated by accused his testimony that he was a member along with accused in the committee run by the complainant. He corroborated the testimony of the accused that the complainant used to take two security cheques at the start of the committee which were to be returned after clearing the amount at the end of committee cycle. He further corroborated that the cheque in question was given in last committee which ran from October 2012 to February 2014 making the duration of the committee 17 months. In his cross examination the accused once again stated that the complainant gave a slip of the balance amount of Rs. 63,020/- (Exhibited as CW1/DW1) which was pending. The accused stated in his cross that the committee C.C No. 4994012/16 Page No. 9 RAHU Digitally signed by RAHUL JAIN Date: L JAIN 2021.08.16 14:45:59 +05'30' was of Rs. 5,10,000/- with each share of the member being Rs. 30,000/- per month and due date of the committee was 15th of each English calendar month which was corroborated by the alleged balance of amount slip which mentions amount around Rs.29,000-30,000 being pending on 15th of January and 15th of February. The accused brought a handwriting expert as DW-3 to prove that the slip was in handwriting of the complainant. The handwriting expert was sufficiently cross examined. I have gone through the report from which the opinion of the expert is clear and categorical to the fact that the handwriting on the exhibit CW1/D1 is of the complainant. I have myself compared the disputed handwriting with the specimen taken in the presence of the court and both of them are of the same handwriting in the opinion of this court. It was held by the Supreme Court of India in Murari Lal S/O Ram Singh vs State Of Madhya Pradesh on 21 November, 1979 Equivalent citations: 1980 AIR 531, 1980 SCR (2) 249 as under :-
An expert is no accomplice. There is no justification for condemning the opinion-evidence of an expert to the same class of evidence as that of an accomplice and insist upon corroboration. The view occasionally expressed that it would be hazardous to base a conviction solely on the opinion of an expert-handwriting expert or any other kind of expert-without substantial corroboration is not, because experts in general, are unreliable witnesses, but because all human judgment is fallible. The more developed and the more perfect a science, the less the chance of an incorrect opinion. The science of identification of handwriting unlike the science of identification of finger prints which has attained near- perfection is not quite perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. An expert opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty is to C.C No. 4994012/16 Page No. 10 RAHU Digitally signed by RAHUL JAIN Date:
L JAIN 2021.08.16 14:50:28 +05'30' furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. [253 A-G] 250
2. There is no rule of law nor must any rule of prudence which has crystalized into a rule of law that opinion evidence of a hand-writing expert never be acted upon unless substantially corroborated. But having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be an inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. [258 A-D] Section 73 of Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If is hazardous to do so, it is one of the hazards to which a judge and litigant must expose themselves whenever it becomes necessary. In cases where both sides call experts it becomes the plain duty of the court to compare the writings and come to its own conclusion. Where there are expert opinions, they will aid the Court. Where there is none the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge.
The expert has analysed the disputed writing Ex.CW1/D-1 with the specimen writing S-1 and S-2 and opined that both are written in good speed and flow by a skilled writer. She has further opined that disputed writings are free from defects of forgery such as faulty pen-lifts , suspicious retouching , fraudulent tremors and hesitations.
C.C No. 4994012/16 Page No. 11RAHUL Digitally signed by RAHUL JAIN JAIN 14:50:59 +05'30' Date: 2021.08.16 Letter and digit of the disputed writing show fluency, unconsciousness and display good line quality.
23. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court held the following :-
"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 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. 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 non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist."
24. This court is of the view that the prosecution has failed to make out a case against the accused and has miserably failed to stand on its own legs. There are glaring inconsistencies indicating gaping hole in the complainant's version that the cheque in question was issued to him towards discharge of any legal debt.
25. Therefore, In view of the aforesaid discussion, I hereby hold that the presumptions in favour of the complainant under section 139 read with section 118
(a) NI Act stands rebutted. The complainant has failed to prove and substantiate its allegation against the accused and all the ingredients of Section 138 of NI Act could not be proved against the accused. Accordingly, accused Manish Dagar is hereby acquitted for the offence u/s 138 of the NI Act.
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by RAHUL JAIN
L JAIN
Date: 2021.08.16
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26. This judgment contains 13 pages. Every Page of this judgment has been signed by me.
RAHUL Digitally signed
by RAHUL JAIN
JAIN Date: 2021.08.16
14:41:15 +05'30'
ANNOUNCED IN THE OPEN COURT (RAHUL JAIN )
TODAY i.e 16.08.2021 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
C.C No. 4994012/16 Page No. 13