Delhi District Court
Ranjan Dubey vs . Subatti Khan on 3 February, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE04: NORTH WEST DISTRICT
ROHINI DISTRICT COURTS: NEW DELHI
RANJAN DUBEY Vs. SUBATTI KHAN
PS Vijay Vihar
Date of Institution : 06.02.2013
Date of Judgment : 03.02.2023
JUDGMENT
(1) Serial number of the case : 5737/2016
(2) Name of the complainant : Sh. Ranjan Dubey
S/o.: Sh. Daya Shankar
R/o.: C11/117, Sec.5,
Rohini, Delhi110085
(3) Name of the accused : Sh. Subatti Khan
S/o Sh. Chand Khan,
R/o: C9/39, Sec.5,
Rohini, Delhi.
(4) Offence complained : U/S 138 Negotiable
of/ proved Instruments Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquittal
(7) Reserved for judgment on : 03.02.2023
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that the complainant is working as a supplier of all types of medicines to the chemist in Delhi on commission basis. That the accused had approached as a friend / neighbour made a request to give a loan for Rs. 305000/ to complainant. The accused had informed that he required CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 1 of 25 Rs. 305000/ for purchase of a Plot measuring 60 Sq. Meters, Khasra no: 62/3, Krishna Colony, Sector24, Rohini, Delhi. The complainant had paid a sum of Rs.305000/ in cash to the accused in the month of February2012 and the accused had promised to refund the said amount of Rs. 305000/ alongwith interest to the complainant in December2012. The accused had issued / handed over two post dated cheques of Rs. 2,10,000/ (Rupees Two Lacs Ten Thousand Only) vide cheque no: 906162 dated 14.12.2012 and cheque no:
906163 of Rs. 95,000/ dated 14.12.2012 drawn on Punjab National Bank, Sector5, Rohini Delhi for the refund of the principle amount in favour of the complainant. The accused had promised to the complainant that the cheques would not dishonoured at the time of presentation the cheques. The accused had promised / agreed to pay the interest @ 18% up to December 2012 as and when the cheques of principle amount is cleared by the Punjab National Bank, Sector5, Rohini, Delhi. The complainant had presented the said cheques for encashment in his Saving Bank Account no:
4171000100137881, Punjab National Bank, Sector5, Rohini Delhi on 14.12.2012. That the cheques bearing no. 906162 and 906163 were returned with the remark "Payment stopped by the A/c Holder" and the same was returned unpaid. The amount of Rs.3,05,000/ has not been credited in the account of complainant. The banker of the accused i.e. Punjab National Bank, Sector5, Rohini Delhi110085 had issued the certificate in this regard with remark "the said cheques have been stopped by the A/c CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 2 of 25 Holder hence these cheques cannot be paid on 14.12.2012 duly signed by the Chief Manager the bank. The complainant informed the accused about the dishonour of the aforesaid two cheques and requested the accused to refund the money / payment of Rs.3,05,000/ but the accused paid no attention on the request of the complainant. The accused refused to make the payment to the complainant in the month of January 2013. Thereafter, the complainant sent a legal notice dated 09.01.2013 to the accused by Regd. Post and by Courier under Section 138 of the Negotiable Instrument Act, 1881 about the dishonour of the said two cheques issued by him. The complainant demanded to refund the payment of Rs. 3,05,000/within period of 15 days from the date of receipt of legal notice dated 09.01.2013. Despite the service of the legal notice, the accused has failed to make the payment of the abovesaid two cheques within the statutory period of 15 days. The accused knowingly, deliberately and intentionally issued the said cheques knowing fully that the same would be dishonoured.
Thereafter, the accused had replied the legal notice of the complainant on 21.01.2013 and refused to refund the amount and made a false / fabricated story. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit of the complainant (Ex.CW1/A) and relied upon documents i.e.: Cheque bearing no. 906162 dated CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 3 of 25 14.12.2012 for Rs. 2,10,000/ drawn on Punjab National Bank, Sector5, Rohini, Delhi (Ex.CW1/1); Cheque bearing no. 906163 dated 14.12.2012 for Rs. 95,000/ drawn on Punjab National Bank, Sector5, Rohini, Delhi (Ex.CW1/2); Certificate dated 14.12.2012 (Ex.CW1/4); Legal Notice dated 09.01.2013 (Ex.CW1/5); Postal Receipts (Ex.CW1/6); Courier receipts (Ex.CW1/7); Delivery reports of legal notice sent to post office are (Ex.CW1/8, Ex.CW1/9 and Ex.CW1/10); Delivery report of legal notice sent through Courier (Ex.CW1/11 to Ex/CW1/12); Reply to the Legal Notice (Ex.CW1/13); which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 06.02.2013 for offence u/s. 138 NI Act.
3. After the accused entered appearance, accused was admitted to bail on 29.04.2013, and notice was framed against accused on 05.10.2013 by the Ld Predecessor wherein the accused stated the defence that the cheques in question were given to the complainant as security cheques and the same were signed blank, and the accused has no liability towards the complainant. Thereafter, the matter was fixed for the crossexamination of the complainant.
4. During the evidence, the complainant was duly cross examined by the Counsel for accused in which complainant stated that he is the supplier of medicines and operates from his residence. He has been working since last 15 years. He has been working as proprietor of CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 4 of 25 M/s Maya Ayurvedic Agency. He did not know Shanti Devi and Mahesh Kumar Sharma. He has been paying income tax, and he has been paying service tax in respect to M/s Maya Ayurvedic Agency. He further deposed that he was not paying service tax. He has not calculated as to what is his income for the period from 01.04.2011 to 31.03.2012. He deposed that he was not maintaining his bank account as he was dealing only in cash. He was not maintaining any account book / ledger with respect to the cash transaction. He has not calculated as to how much quantity of medicine he has sold in an year. He first time met the accused Subhatti Khan two years ago from the present case. He has no business dealing with the accused Subhatti Khan. He denied the suggestion that he has been dealing as property dealer also. He had paid the amount of Rs. 95,000/ on the date of bayana and Rs. 2,10,000/ had been paid on the date of writing of the documents. He did not know the date when the said amounts were paid. He had not taken any receipt from the accused for the payment of the said amount, however, the cheque was given to him. He has not taken out any amount from the bank. He had taken the amount from his friends and from his wife for the payment to the accused, He could not tell the name of the friend from whom he had taken the amount. He did not remember as to how much amount he had taken from his friend and how much amount he had taken from his wife Ms. Maya Devi. He could not tell the exact date of execution of bayana agreement and the agreement to sell but the bayana agreement was executed in the month of March or April 2012. He furher deposed CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 5 of 25 that the said bayana agreement was executed in the month of February to April 2012. He had witnessed the documents i.e Receipt, GPA, Agreement to Sell, Possession letter and Deed of Will, the photocopies of the same exhibited as Ex.PW1/X1 (OSR) to Ex.PW1/X6 (OSR), and when these documents were getting signed, he alongwith the accused, wife of the accused Usha Khan and wife of the complainant Maya Devi were present at Pitampura. A person namely Sundram came to complainant who took the amount from the complainant at his residence. He further deposed that he had given the amount to the accused Subhatti Khan who had given the said amount to Sundram. Sh. Sundram may be the person of Shanti Devi. Complainnat had received a phone call from Subhatti Khan to make the payment to them so I made the payment to them. The complainant did not know the address of the property which was to be purchased by the accused. He denied the suggestion that he has been working as property dealer and he has shown the property in Khasra No.62/2 or 62/3 in the area of Village Prahlad Pur, Bangrabari, Krishan Colony, Delhi measuring 50 square yards to the accused or that he had got introduced Sh. Mahesh Sharma to the accused for the sale of the property of Shanti Devi. Upon the specific question that whether Sh. Mahesh Kumar had taken the amount of Rs. 50,000/ in presence of the complainant and his wife and yourself, the complainant replied that he would inquire from his wife. The complainant had deposited the cheques Ex.CW1/1 and Ex.CW1/2 with his Bank i.e. Punjab National Bank, Sector05, Rohini. He denied the CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 6 of 25 suggestion that the said cheques were never presented for encashment with the bank. There was no deduction from his account for the return of any cheque or that the amount of Rs. 1,50,000/ was paid on 09.02.2012 to Smt. Shanti Devi in the presence of his wife or that the amount of Rs. 50,000/ was paid to Sh. Mahesh Kumar Sharma for the purchase of the plot in the presence of the complainant or that he had told the accused that Shanti Devi is selling the said plot through Mahesh Kumar Sharma. Further he denied the suggestion that undated and blank cheques were given by the accused on 06.04.2014 as security as the payment for the plot was to be made on 16.04.2012, or that on the payment of the balance amount for the purchase of the plot, the said cheques were not returned by the complainant intentionally, or that the accused demanded the cheques from the complainant but the same were not returned, so the accused got the payment stopped and intimated his banker on 09.05.2012. He further denied the suggestion that in spite of execution of the said documents, the possession of the plot could not be handed over to the wife of the accused as the property belongs to somebody else or that the complainant alongwith Mahesh Kumar Sharma, Shanti Devi and Maya Devi cheated and played fraud with the accused, or that the wife of the complainant, for the sale of the said plot, has misused the blank cheques which were given as security by wrongly filling the amounts in the said cheques or that he was deposing falsely.
CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 7 of 255. CW2 Sh. S.R.Tiwari, Senior Manager, Punjab National Bank, Sector05, Rohini, Delhi was summoned by the Court, and he brought the following original records
i) Computerized statement of account of accused Subhatti Khan bearing account no. 4171000100139409 of Punjab National Bank, Sector05, Rohini, Delhi exhibited as Ex.CW2/3.
ii) Statement of account of the complainant Rajan Dubey having the account no. 4171000100137881 of Punjab National Bank Sector 05, Rohini, Delhi exhibited as Ex. CW2/2.
iii) Copy of cheque stop payment request dated 09.05.2012 signed by the accused Subharti Khan in respect of cheque no. 906162 and 906163 (OSR) which is Ex. CW2/1.
6. CW2 S.R. Tiwari deposed that the amount of Rs. 60 each against the charges of stopped payment were deducted on 09.05.2012. he has seen the certificate dated 14.12.2012 issued by his branch office which was duly signed by the previous branch officer which was identified by him in respect of the abovementioned cheques which are exhibited as Ex.CW1/3 on 06.02.2013. CW2 S.R. Tiwari was duly cross examined by Sh. Bhupesh Narula Ld. Counsel for accused, wherein he deposed that he has never worked with the executant of the documents CW 1/3. It is correct that when the cheque is deposited in the drop box and the same was sent for clearing the bank, put its stamp on the said cheque. Upon the specific question whenever the cheque is deposited on the counter, it is CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 8 of 25 deposited with the deposit slip and he entertain when there is a deposit slip attached to the said cheque. He answered that it is correct that earlier the said procedure was adopted and now after the introduction of the CBS System it is not so. Further he can not tell without going through the record as to when the CBS System was introduced in this branch. It is correct that Ex.CW1/3 was never called from him with the summons. He further deposed that they maintained the record of the letter issued to the parties. The said letter has been issued to Sh. Ranjan Dubey. It is correct that there is no dispatch number on the letter dated 14.12.2012. He further deposed that the letter may have been handed over in person to the party so the same may not have any specific dispatch number. He could not say anything about the said letter as he was not posted in the branch in the year 2012. He could not tell how many letter were issued in the name of Sh. Ranjan Dubey on 14.12.2012. It is correct that CW1/4 is also issued by their branch regarding the the same cheques. It is correct that the account number mentioned on Ex.CW1/4, Ex.CW1/1 and Ex.CW1/2 are different. It is correct that whenever a duplicate letter is issued, it is of the original which is kept with the branch. On the specific question had the bank entered the cheques bearing no. 906163 and 906162 in the account of Ranjan Dubey, he replied that they have not entered the said cheque in the statement of account of Ranjan Dubey on 09.05.2012. Upon the another question that when Ranjan Dubey had come to the bank to present the said cheques, he replied that Sh. Ranjan Dubey may CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 9 of 25 have come to the bank for presenting the said cheque as per the dates mentioned on the certificate. He further deposed that as per document Ex.CW1/4 Ranjan Dubey might have come to the branch. He was not present on the said date i.e 14.12.2012. Upon the question that 'as per procedure of the bank whether the certificate can be issued to the person Ranjan Dubey whose name is not mentioned on the cheque as the name mentioned on the cheque is Rajan Dubey, he replied that 'in case of account payee cheque, the memo / certificate is issued to the person in whose name of the account stands and in case of bearer cheque whosoever presenting the cheque receive the memo / certificate. Upon the question that 'if the account number is mentioned on the back of the cheque in whose account the said cheque is to be credited, then the bank check the name of the account holder and the name mentioned on the cheque, he replied that 'they cannot clear the cheque if the title of the cheque differs from the account holder's name. Upon the question that when Rs. 60 was deducted and from whose account, he replied that 'the amount of Rs. 60 was deducted on 09.05.2012 from the account of Sh. Subhati Khan as per the statement Ex.CW2/3. He further deposed that the said cheques were got stopped payment by Sh. Subbati Khan as he is the account holder of these cheques. He further deposed that he has no personal knowledge about the present case and he came to this branch in September 2016.
CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 10 of 257. The statement of accused was thereafter recorded under Sec 313 CrPC on 18.10.2022 wherein the entire incriminating evidence was put to the accused and accused has taken the defence that he was shown a plot by the complainant and the accused had given Rs. 50,000/ as security to the complainant on 02.02.2012. After one week, complainant asked me to make further payment thereupon, the accused gave Rs. 1,50,000/ to the complainant on 09.02.2012. Thereafter, the complainant took two security cheques from the accused which were the cheques in question in this case. Thereafter on 16.04.2012, the accused again made a payment of Rs. 3,50,000/ to the complainant and asked for return of his cheques which the complainant did not return. Since, the complainant did not return his cheques, the accused gave instruction to his bank to stop payment and he asked the complainant to give the possession of the plot which he did not give nor returned his money. When the accused went to his plot, he found it in possession of someone else.
8. The accused however has chosen to lead evidence qua defence.
9. DW1 SI Avdhesh No. D4567, PS Vijay Vihar, deposed that he was a summoned witness in the present case and he has brought the summoned record i.e. original FIR No. 1073 dated 07.08.2015 PS Vijay Vihar, U/s:
420/468/471/120B/34 IPC and copy of the same is Ex.DW1/1A. He was duly cross examined by the Ld. CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 11 of 25 Counsel for complainant wherein he deposed that he joined the investigation in the said FIR on 06.05.2018 and case is still pending investigation. He was not aware as to what is the offence in respect of the case of which he has been summoned as a witness.
10. DW2: Sh. Subatti Khan (accused) deposed that one property at Kishan Colony was sold to him by Ranjan Dubey. Ranjan Dubey took Rs. 50,000/ as token money from him. Thereafter, complainant took Rs. 1,50,000/ in cash in April 2011/2012 and receipt was issued to that effect. The complainant, thereafter, took blank cheques from the accused on promise that after full payment shall be made by the accused, thereafter, the cheques shall be returned to the accused. Accused has made full payment in April 2012, and he requested complainant to return his cheques, however, the complainant delayed on one pretext or the other. The cheques were never returned to the accused and further complainant has threatened him of dire consequences. Neither the property was transferred to him, nor cheques were returned to him and the complainant has cheated the accused for the amount around Rs. 12.5 lakhs. After all this, the accused has visited the house of the complainant 34 times for cheques to be returned, however, he has refused to do so and henceforth, the accused gave instructions to his bank to stop the payment. The complainant has misused the cheques and has filed false and frivolous case against him. He was duly cross examined by the Ld. Counsel for complainant wherein he deposed that the accused has CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 12 of 25 purchased the property from the complainant and vide property in question, he has instituted suit against Shanti Devi, which is pending before the Ld. ADJ. Sh. Vipin Kharb. Accused handed over cheques to the complainant for the reason that he has represented him that he was the owner of the property, therefore, it was handed over to the complainant on his representation. He denied the suggestion that he has taken loan from the complainant to purchase property from Shanti Devi and henceforth, he had handed over cheque to the complainant as security or that he was deposing falsely.
11. DW3 Insp. A.K. Singh, PS Vijay Vihar brought the summoned record pertaining to complaint dated 18.01.2013 arising out of DD No. 31B, statement dated 13.02.2013 and complaint given on DD No. 41B, dated 02.05.2014. The same was weeded out as per weeding out order bearing number 68566893/6894 945/HAR/Rohini Distt. Dated 28.08.2047. The same was in the records as Ex.CW3/A. He was duly cross examined by the Ld. Counsel for complainant wherein he deposed that he did not have personal information about the case nor he knew about the nature of the complaint. The case with respect to the complaint was never marked to him. Thereafter, defence evidence was closed.
12. Final arguments advanced by Mr. Ajeet Singh, Ld counsel for the complainant and by Mr. Bhupesh Narula, CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 13 of 25 Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
13. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That 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;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 14 of 25
14. In the case at hand, the accused has disputed that the cheque in question has been issued on an account maintained by accused rather he has asserted that cheque belongs to the company and company has not been made the accused with a bank and hence the ingredient (i) is deemed to not proved as during evidence also it has been admitted by the complainant himself that amount was invested with the Company and Company owes him. In view of the fact that Company has not been made the accused nor any liability has been proved against the Company, it cannot shift the burden upon accused that such amount would be liable to be personal liability of the accused.
15. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Cheque bearing no. 906162 dated 14.12.2012 for Rs. 2,10,000/ drawn on Punjab National Bank, Sector5, Rohini, Delhi (Ex.CW1/1); Cheque bearing no. 906163 dated 14.12.2012 for Rs. 95,000/ drawn on Punjab National Bank, Sector5, Rohini, Delhi (Ex.CW1/2) was returned dishonoured on 14.12.2012. During the cross examination of complainant, no questions were put to the complainant nor any suggestions were given to the complainant as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 15 of 2516. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by accused in statement under Sec 313 CrPC, but contention has been raised by the accused that he do not owe the personal liability, the ingredient
(iv) is also deemed to be admitted as not disputed.
17. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, complainant sent Legal Notice dated 09.01.2013 (Ex.CW1/5) to the accused for return of the cheque amount vide speed post and courier on 10.01.2013 vide Postal Receipts (Ex.CW1/6); Courier receipts (Ex.CW1/7); i.e. within 30 days of dishonour of the cheque. The complainant also relied upon delivery reports of legal notice sent to post office are (Ex.CW1/8, Ex.CW1/9 and Ex.CW1/10); Delivery report of legal notice sent through Courier (Ex.CW1/11 to Ex/CW1/12). The accused has however not denied receipt of the notice of demand and have replied it vide (Ex.CW1/13). Therefore the ingredient (v) also stands proved.
18. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT/LIABILITY
19. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 16 of 25 under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused 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 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 such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
20. The NI Act also provides under Section 139 that 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 CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 17 of 25 any debt or other liability. Thus, Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so 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 liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
21. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
22. Firstly there have been numerous improvisations in the cross examination of the complainant herein which seriously shakes his credibility. The complainant states that he does not know Shanti Devi however in the later part of the cross examination when he was asked as to when the documents were prepared he volunteered on his own that Shanti Devi had already left when he reached Pitampura. This was a blatant lie on the part of the complainant and that too when not any leading question CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 18 of 25 was asked to him but he has volunteered on his own and have contradicted the earlier part of his cross examination with respect to his acquaintance with Shanti.
23. Secondly, in his crossexamination, he had stated that he has been paying service tax with respect of his proprietorship agency however later on improvises in his crossexamination again that he's not paying any service tax now.
24. Thirdly, complainant stated in his crossexamination that he has been paying income tax earlier but from last 4 to 5 years, he has not been paying income tax. He was confronted by the he has calculated anything with respect to his income for the period 01.04.2011 to 31.03.2012 to which he states that he has not calculated. Later on he states that he is dealing only in cash. In the local colloquial terms it means that he is not maintaining any leisure account for any form of payment of income tax, however in the earlier part of this crossexamination he stated that he was paying income tax but he's not paying for the time being and also do not have any idea about his income and later on comes up with version that he is dealing only in cash.
25. Fourthly, complainant have stated in his cross examination that he's not maintaining any bank account and also is not maintaining any account book/leisure with respect to the cash transaction. He also have not conflicted as to how much quantity of medicine have been CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 19 of 25 sold in any year. This cast serious doubt on the provision of the complainant herein as to what kind of businessman he is that it does not know the whereabouts and the income and the formal dealings with the revenue authorities which also brings under doubt his source of income. This is also blatant lie in view of the fact that if he is not maintaining any account then in which the bank account the complainant have got the check dishonoured which has afforded him an opportunity to file the present case against the accused.
26. Fifthly, it is also not clear as to in what way the accused herein is a friend of the complainant which have afforded an opportunity to advance from the loan amount. No document have been placed on record to show that she is never nor, as admitted by complainant, there is any business dealing with the accused herein.
27. Sixthly, as per the affidavit of the complainant, he had stated that he has advance loan amount of ₹ 305,000 to the accused herein in the month of February 2012 however bereft of such facts which he has deposed in his crossexamination, he comes up with the version that he has paid ₹ 95,000 on the date of bayana i.e February 2012 and has paid ₹ 210,000 on the date of writing of documents i.e April 2012. This is clear improvisation on the part of the complainant herein wherein such facts were not at all have been contemplated in his affidavit which are essential and material facts for the decision of the case and anyone who seeks to successfully prosecute CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 20 of 25 the accused in the cheque with respect to dishonour would substantiate. This is interpreted and construed against the complainant himself.
28. Seventhly, the complainant is clueless in his cross examination as well(though he has committed to state those facts in his affidavit as well) that he did not know the date when the said amounts were paid. He had not taken any received from the accused for the payment of the said amount. The complainant, with new versions that the amount was taken from his friends and from his wife for the payment to the accused. Even he was clueless as to the name of friend from which he has taken such amount. He did not even remember as to how much amount he had taken from his friend and how much amount he has taken from his wife. He cannot even tell when the agreement of sale was executed or the other agreements were executed.
29. Eightly, even the advancement of loan amount to the accused herein directly is under doubt. During cross examination the complainant have deposed that a person named Sh. Sundaram came to him put the amount from him at his residence. Even serious doubt is cast upon the credibility of the complainant in the present case as he volunteers that he had given the amount to accused had given the said amount to the Sh. Sundaram. Even complainant does not know whether such person Sh. Sundaram is the agent of accused herein or that of Shanti Devi. Even this narrative of Sh. Sundaram stands on weak CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 21 of 25 legs as this narrative for the first time has been introduced at the state of crossexamination and in his affidavit such facts are ommitted. He even does not know the Association of such person with any of the person who he is accusing.
30. Ninthly, final nail in the coffin happens to be in the position of the complainant herein for the property for which he has advance the money and he has witnessed a document which were executed with respect to such property that during crossexamination he was compelled to depose that he even does not know the address of such property which was to be purchased by the accused.
31. Tenthly, not only the beauty of crossexamination is very evident from the testimony of the complainant wherein he was well sure that he was not maintaining any bank account however when confronted admits in the later part of his testimony that he has deposited the cheque with Punjab National Bank of Sector 5, Rohini.
32. Eleventhly, even case has been registered by the name of complainant as Ranjan, and name of parties as well as affidavit is also in the name of Ranjan Dubey but every other document that have been placed on record is in the name of Rajan Dubey. This is an odd contradiction and therefore the case of the complainant do not inspire any doubt and cast serious doubt upon him as to his credibility. The complainant herein is a shaky witness and CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 22 of 25 have revealed testimony with respect to facts which are full of improvisation and contradictions.
33. Since the case of complainant do not inspire confidence and accused is liable to be acquitted even only upon the above 11 reasons given, it is futile for the court to move further and cull out more reasons to state the weakness of the complainant and delve into the defence of the accused. Accused stands acquitted.
34. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable / doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
35. However, the complainant herein has miserably failed to do so. It is duly noted that the complainant have not been able to give reason that though he has invested money with corporate legal entity and also states in his cross examination regarding the owing to corporate legal entity, he has failed to give any rational that why he has personally tried the accused herein.
36. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 23 of 25 Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
37. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
38. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sh. Bharat Bhushan S/o Sh. Y.L. Dedeja is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, accused Subatti Khan S/o Chand Khan stands acquitted.
39. Accused Subatti Khan S/o Sh. Chand Khan is directed to furnish bail bond and surety bond in the sum of Rs. 25,000/ under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon the accused.
40. File be consigned to Record Room after due compliance.
CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 24 of 25Announced in the open court on 04.01.2023 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 25 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi CC No. 5737/2016 RANJAN DUBEY Vs. SUBATTI KHAN Page 25 of 25