Delhi District Court
Devi Ram vs . Ramniwas & Anr. Page 1 Of 26 on 29 July, 2022
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 8282/2019
CNR NO.: DLND020142622019
Devi Ram,
R/o E-4, Sector-27, Noida,
District Gautambudhnagar,
Uttar Pradesh - 201301.
......Complainant
versus
1. Ramnivas,
S/o Late Sh. M.R.Singh,
R/o C-374, Sector-19, Noida,
District Gautambudhnagar,
Uttar Pradesh - 201301.
2. Shaurabh Chaudhary,
S/o Sh. Ramnivas
R/o C-374, Sector-19, Noida,
District Gautambudhnagar,
Uttar Pradesh - 201301.
........Accused
JUDGMENT
Date of Institution of Complaint : 13.11.2017 Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 04.07.2022 Decision Qua Accused no. 1 : Acquittal Decision Qua Accused no.2 : Not summoned Date of Decision : 29.07.2022.
CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 1 of 26BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, I shall dispose of the present complaint u/s. 138 of Negotiable Instrument Act, 1881(hereinafter referred to as the NI Act) filed by the complainant against accused on account of dishonour of cheque bearing no. 007597 dated 05.09.2017 for a sum of Rs.8,75,000/- drawn on ICICI Bank, Noida issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
BRIEF FACTS OF THE CASE
2. Brief facts of the case as per the complaint are that in the year 1976, the District Authority allotted land for agricultural purposes to the villagers and one of the allotees was the father of the complainant. That in spite of allotment in the name of the father of the complainant, copy of the khasra / khatoni could not be obtained from the appropriate authority. It is further stated that the complainant approached and discussed with the accused persons regarding how to get the copy of Khasra / Khatoni from the appropriate authority and the accused persons asked for the complainant to arrange the money for the expenses in this regard. It is further stated on behalf of the complainant that several payments totaling to Rs. 15,75,000/- have been paid by the complainant to the accused no.1 and the son of the accused no.1 who is accused no. 2 from 29.03.2015 till CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 2 of 26 03.10.2016 on the pretext that they shall get the copy of Khasra / Khatoni from the appropriate authority. The details of various payments made by the complainant as per the complainant are as follows:
S. No. Date of Mode of Amount To whom
payment payment payment made
1. 29.03.2015 Cash 1,00,000/- Accused
persons
2. 05.04.2015 Cash 1,00,000/- Accused
persons
3. 05.05.2015 Cash 25000/- Accused no.1
deposited
4. 05.05.2015 Cash 25000/- Accused no.2
deposited
5. 11.05.2015 Cash 50,000/- Accused no.1
deposited
6. 11.05.2015 Cash 25,000/- Accused no.2
deposited (twice)
7. 29.05.2015 Cash 25,000/- Accused no.1
deposited
8. 29.05.2015 Cash 25,000/- Accused no.1
deposited
9. 02.06.2015 Cash 1,00,000/- Accused
persons
10. 06.06.2015 Cash 40,000/- Accused no.1
deposited
11. 06.06.2015 Cash 20,000/- Accused no.2
deposited
12. 16.06.2015 Cash 25,000/- Accused
persons
13. 11.07.2015 Cash 10,000/- Accused
persons
14. 16.07.2015 Cash 10,000/- Accused
persons
15. 28.07.2015 Cheque 1,00,000/- Accused no.1
CC No. 8282/2019
Devi Ram vs. Ramniwas & Anr. Page 3 of 26
16. 28.07.2015 Cash 50,000/- Accused
persons
17. 22.08.2015 Cash 30,000/- Accused no.1
deposited
18. 22.08.2015 Cash 20,000/- Accused no.2
deposited
19. 01.03.2016 Cash 2,00,000/- Accused
persons
20. 01.03.2016 Cheque 1,00,000/- Accused no.2
21. 11.05.2016 Cheque 1,15,000/- Accused no.1
22. 28.06.2016 Cheque 1,00,000/- Accused
persons
23. 30.06.2016 Cash 25,000/- Accused no.1
deposited
24. 30.06.2016 Cash 25,000/- Accused no.2
deposited
25. August, Cash 5000/- Accused no.1
2016
26. 03.10.2016 Cheque 2,00,000/- Accused
persons
3. It is further stated on behalf of the complainant that till 03.10.2016 accused persons had cheated with complainant a total sum of Rs.15,75,000/-. It is further stated that the accused no.1 & 2 returned Rs. 7,00,000/- in denomination of Rs.500/- & Rs.1000/- (old notes) to the complainant in November, 2016 and assured the complainant that the balance amount shall be returned in parts soon. On demand of the complainant, the accused no.1 in order to discharge their liability issued the cheque in question to the complainant. However, on presentation of cheque in question the same was returned dishonoured on presentation with remarks "Payment stopped by drawer" vide cheque CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 4 of 26 return memo dated 14.09.2017. That thereafter, a legal notice was sent to the accused dated 13.10.2017 and since no payment was made within 15 days of the service of legal notice, then the present case has been filed.
CASE PROCEEDINGS
4. Pre-summoning evidence was concluded vide order dated 01.02.2018 and summons were issued to accused no.1 only on 23.10.2018 and accused no. 2 was not summoned. The accused entered his first appearance through counsel on 01.04.2019 and he appeared in person on 06.05.2019. Accused furnished bail bonds on 27.06.2019.
5. A notice explaining the accusation to the accused no.1 u/s.
138 of N.I.Act was served on 06.05.2019 and his plea was recorded. Accused while admitting to his signatures on the cheque in question took a plea that he has already made some payment to the complainant and he only owes Rs. 1,75,000/- to the complainant.
6. An application u/s. 143A NI Act was filed on behalf of the complainant on 21.05.2019 and the same was dismissed as withdrawn on 21.08.2019.
7. Oral application u/s. 145(2) NI Act moved on behalf of accused was allowed vide order dated 06.05.2019. During complainant's evidence (CE), fresh post-summoning evidence by way of affidavit was filed, along with CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 5 of 26 additional documents on behalf of the complainant. The complainant has examined himself as CW1 and has relied upon the following documents:-
(i) Deposit slip of Rs. 25,000/- in the bank account of accused no.2 is Ex-CW1/1.
(ii) Deposit slip of Rs. 25,000/- in the bank account of accused no.1 is Ex-CW1/2.
(iii) Deposit slip of Rs. 25,000/- in the bank account of accused no.1 is Ex-CW1/3
(iv) Deposit slip of Rs. 25,000/- in the bank account of accused no.1 is Ex-CW1/4
(v) Deposit slip of Rs. 25,000/- in the bank account of accused no.1 is Ex-CW1/5
(vi) Deposit slip of Rs. 25,000/- in the bank account of accused no.1 is Ex-CW1/6
(vii) Deposit slip of Rs. 40,000/- in the bank account of accused no.1 is Ex-CW1/7
(viii) Deposit slip of Rs. 20,000/- in the bank account of accused no.2 is Ex-CW1/8
(ix) Statement of account of one Mr. Rajpal Singh showing entry dated 31.07.2015 whereby a sum of Rs. 1,00,000/- has been transferred to the accused no.1 is Ex-CW1/9.
(x) Deposit slip of Rs. 30,000/- in the bank account of accused no.1 is Ex-CW1/10
(xi) Statement of account of the complainant from 01.03.2015 to 07.11.2017 (page 1 to 4) is Ex-CW1/11 CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 6 of 26
(xii) Statement of account of the complainant from 01.03.2015 to 07.11.2017 (remaining pages) is Ex-CW1/12
(xiii) Deposit slips of Rs. 25,000/- each in the bank account of accused no.1 are Ex-CW1/13 & Ex- CW1/14.
(xiv) Pen drive containing video conversation between the complainant and accused no.1 is Ex-CW1/15 and the transcript of the same is Ex-CW1/16 (both documents objected to by the opposite party as to the mode and manner of proof of the documents and also because the complainant is not competent to prove the said document).
(xv) Original cheque in question is Ex-CW1/B. (xvi) Original cheque returned memo dated 14.09.2017 is Ex-CW1/C. (xvii) Legal notice dated 13.10.2017 is Ex-CW1/D. (xviii) Original speed post receipts dated 13.10.2017 & 17.10.2017 are Ex-CW1/E. (xix) Original POD taken from the concerned post office at Noida is Ex-CW1/F.
8. CW1 was duly cross-examined by counsel for accused and discharged. Since no other witness was sought to be examined on behalf of complainant, accordingly, vide order dated 05.03.2020, CE was closed.
CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 7 of 269. Accused no.1 was thereafter examined u/s. 281 r/w. Section 313 Cr.P.C on 15.03.2020, and the entire incriminating evidence was put to him during which the accused took a similar stand as taken by him at the time of service of notice upon him u/s. 251 Cr.P.C. Matter was then adjourned for DE. Since the accused failed to lead DE despite several opportunities his right to lead DE was closed vide order dated 05.05.2022.
10. Additional statement of the accused u/s. 281 r/w. section 313 Cr.P.C was recorded by this court on 04.07.2022 and the accused stated that he has signed the cheque in question and that he has not filled the particulars of the cheque in question. He has further stated that the cheque in question was given for security purposes in 2016. It is his case that he had taken an amount of Rs. 7,50,000/- to Rs. 8,00,000/- from the complainant for getting "receipt / Bandobast Challan" of one property in the name of father of the complainant and it was agreed that in case he is not able to get the receipt then he shall repay the said amount. He has admitted to the receipt of the legal notice. While the accused has admitted to the receipt of several payments by the complainant, he has categorically stated that he and his son had separate dealings with the complainant and the liability of his son cannot be made his liability. The accused has stated that he has received a total amount of Rs. 8,75,000/- from the complainant on various dates out of which he has already returned Rs. 7,00,000/- in November, 2016 and he is CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 8 of 26 ready to pay the remaining Rs. 1,75,000/- on demand by the complainant. He has further stated that he has not spoken to the complainant on 08.10.2017 and the recording which is Ex-CW1/15 & transcript of which is Ex-CW1/16 placed on record by the complainant is false & fabricated. It is his case that this is a false case against him and his security cheque has been misused.
11. The accused did not choose to lead DE after the additional statement. Accordingly, the matter was adjourned for final arguments.
12. Final arguments were heard by this court on 04.07.2022. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
13. Before moving forward towards the merits of the case at hand, it is pertinent to reproduce the penal provision of section 138 NI Act:
"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 CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 9 of 26 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 extend 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."
(Emphasis Supplied)
14. At the very outset, it is pertinent to lay down the ingredients of the offence under section 138 of NI Act. In Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act.
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 10 of 26
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, 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 is 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 that 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails 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.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
CASE OF THE COMPLAINANT
15. Ld. Counsel for the complainant has submitted that there exists legally enforceable liability in favour of the complainant on behalf of the accused on the basis of the several documents showing the payment made by the complainant to the accused which are Ex-CW1/1 to Ex-
CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 11 of 26CW1/14, the admission of the accused during the video conversation between the accused and the complainant, the transcript of which is Ex-CW1/16, on the basis of presumption under section 139 NI Act and on the basis of the averments made in the complaint and the evidence by way of affidavit. He has further submitted that the cheque in question was issued to the complainant which is Ex-CW1/B. He has further submitted that the dishonour of the cheque is proved by the cheque return memo which is Ex-CW1/C. Further, copy of the legal notice is Ex-CW1/D and postal receipts along with proof of delivery are Ex-CW1/E & Ex- CW1/F. He has further submitted that the complainant received no payment within 15 days of the service the legal notice. Ld. Counsel for complainant has thus submitted that all the ingredients laid down u/s. 138 NI Act are fulfilled and the accused persons should be convicted.
DEFENCE OF THE ACCUSED
16. The primary defence that the accused has taken is that there is no legally enforceable liability in favour of the complainant and against the accused as on the date of the cheque in question or on the date of its presentation and he has taken this defence on the basis of the following points:
(a) That the cheque in question was given only for security purposes.
(b) That firstly a loan of only Rs. 8,75,000/- was obtained by the accused from the complainant and secondly that he has already returned Rs.7,00,000/- out of the total CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 12 of 26 loan amount and the total liability of the accused as on the date of drawal of the cheque and its presentation is not equivalent to the amount of cheque in question.
APPRECIATION OF EVIDENCE
17. Before moving forward with the contentions of the accused persons, it is pertinent to discuss the relevant provisions of law which deal with legally enforceable debt or liability under the NI Act which are section 118(a) and 139 of the NI Act. Section 118(a) of the NI Act deals with the presumption of consideration and section 139 of NI Act deals with presumption of legally enforceable debt or liability and reads as follows:
"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, endorsed, negotiated or transferred, was accepted, endorsed, 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."
18. It is further pertinent to mention the relevant judgments on the point of presumption of legally enforceable debt or liability. Reliance is placed upon the following observations of Hon'ble Supreme Court in India in the judgment of CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 13 of 26 Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
19. In the facts of the present case, the signatures on the cheque in question have been admitted. Accordingly, this court raises presumption under section 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
20. The first point raised by the accused is that the cheque in question was a security cheque given to the complainant. Ld. Counsel for the accused has submitted that since the cheque in question was given as a security and not in CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 14 of 26 discharge of legally enforceable debt or liability, hence, the accused cannot be made liable for the offence u/s. 138 NI Act.
21. Reliance is placed by this court upon the judgment of Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458, Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 and Sunil Todi vs. State of Gujarat & Anr., 2021 SCC OnLine SC 1174 wherein it has been held that merely because a cheque has been issued for only security purposes will not absolve the accused from the liability u/s. 138 NI Act. It has been further held that a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. It has been held by the Hon'ble Court that the accused would very much be liable u/s. 138 NI Act for issuance of a security cheque also, if on the date of the presentation of such cheque there has not been a prior discharge of debt, or if the cheque has not been given towards advance payment, the goods in respect of which have not been received by the court, or if other than this there has been change in circumstances which precludes the complainant from depositing the cheque with the bank.
22. It is the case of the accused that the cheque in question was given only for security purposes to the complainant and the same was to be used only in case if the accused is not able CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 15 of 26 to get the relevant papers in respect of khasra / khatoni in terms of the agreement between the parties and in case he is further not able to repay the amount taken by him from the complainant. He has further submitted that his security cheque has been misused by the complainant and a false case has been filed against him.
23. Per Contra, Ld. Counsel for the complainant has submitted that the cheque in question was not given by the accused for security purposes and the same has been given in discharge of legally enforceable debt or liability. He has further submitted that no proof has been brought by the accused persons to show that the cheque in question has been given as security. It has been further submitted on behalf of the complainant that even if it were to be assumed that the cheque in question is a security cheque, then also, that defence alone does not come to the rescue of the accused in view of the provisions of section 20 of NI Act and the judgments of Hon'ble superior courts in this regard.
24. The accused has failed to show on the basis of evidence on record that the cheque in question has been handed over for security purposes. There is nothing on record except the bald assertion of the accused that the cheque in question has been given for security purposes only. However, even if it is assumed that the cheque in question has been given only for security purposes then also, the same is not sufficient and the accused has to raise a probable defence and has to show CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 16 of 26 on the basis of preponderance of probabilities that no liability exists in favour of the complainant.
25. To show that there was no legally enforceable debt or liability existing in favour of the complainant as on the date written on the cheque, the following submissions have been made on behalf of the accused:
a) That the complainant has never advanced a sum of Rs.15,75,000/- to the accused and as on the date of drawal and presentation of the cheque in question there is no liability of the accused equivalent to the amount of cheque in question, i.e., Rs. 8,75,000/-. It has further been submitted that accused had taken only Rs.
8,75,000/- from the complainant for the purpose stated in the complaint itself, i.e., to get the copy of khasra / khatoni form the appropriate authority, however, since he could not get the work done, accordingly, he had to return the said amount of Rs.8,75,000/- to the complainant and out of which a sum of Rs.7,00,000/- has already been paid by him to the complainant as admitted by the complainant himself in paragraph no. 10 of the complaint. It is further been submitted that as on date he owes only Rs. 1,75,000/- which he is ready and willing to pay on demand.
b) That several transactions which have been stated in the complaint have taken place with accused no.2, in which he has no role to play and which are separate transactions between the complainant and accused CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 17 of 26 no.2. It has further been submitted that he is not liable for any transaction entered into by accused no.2 with the complainant as there is no assignment of debt and because accused no.1 has never either expressly or impliedly undertaken liability of accused no.2.
c) That several payments have been received by the accused no. 1 from the nephew of the complainant, one Mr. Rampal, and for that sum, only Mr. Rampal could file a case for the recovery of the said amount and not the complainant as the complainant has failed to show that the said money has been paid by his nephew at the instance of the complainant.
26. Ld. counsel for the complainant has submitted that several payments have been deposited in the account of accused no.2 only at the instance of accused no.1 and the entire transaction has been done by both of them jointly and in discharge of the said liability, the accused no.1 had issued the cheque in question. He has further submitted that the payments made by his nephew to accused no.1 have been made at the instance of the complainant only and there has been no separate transaction between the nephew of the complainant and the accused.
27. Ld. counsel for complainant has further submitted that accused has categorically admitted his liability in conversation between both the parties which is placed on record as Ex-CW1/15 and the transcription is Ex-CW1/16.
CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 18 of 26Ld. Counsel for the complainant has drawn the attention of this court towards several statements made by the accused during the said video conversation, whereby, the liability of the accused to the tune of Rs.8,75,000/- has been admitted by him.
28. Ld. counsel for the accused has submitted that both these evidences, i.e., Ex-CW1/15 and Ex-CW1/16 are not admissible in evidence. During arguments, reliance has been placed on behalf of the accused at the following extract of the cross-examination of CW1 dated 09.10.2019:
"It is correct that there is no mention in the transcript that accused is required to pay Rs. 8.75 lacs to me. It is also correct that I have also not placed on record any affidavit that the voice of the Pen drive is belongs to the accused."
29. Extensive arguments have been heard by this court on the point of admissibility of evidence which are Ex-CW1/15 and Ex-CW1/16. For clarification of doubts, it is stated that Ex-CW1/15 is a pen drive containing the video conversation of the complainant and the accused and recorded by the son of the complainant and Ex-CW1/16 is a typed document containing the transcript of the same. The accused has categorically stated in his examination u/s. 313 Cr.P.C. that the said documents/ electronic evidence is forged and fabricated and no such conversation took place between the parties on the date stated by the complainant in his fresh evidence by way of affidavit filed at the time of post- summoning evidence.
CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 19 of 2630. It is pertinent to note that the video contained in the pen drive is an electronic document and the same can be proved only in terms of section 65B of Indian Evidence Act which is a mandatory requirement of the law.
31. While considering the electronic records as evidence and the scope of Section 65B of the Evidence Act, the Hon'ble Supreme Court in its decision reported in Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473, has observed as follows:
"15. Under Section 65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 20 of 26 authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A
-- opinion of Examiner of Electronic Evidence. ***
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715], does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
32. The ratio decidendi of Anvar P.V. (Supra) pertaining to Section 65B of the Evidence Act, was recently reiterated by CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 21 of 26 the Hon'ble Supreme Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
33. Three observations are made by this court at this stage. First being that there is no certificate u/s. 65B of Indian Evidence Act, placed on record by the complainant, so that the electronic evidence which is Ex-CW1/15 may be held to be admissible into evidence. Secondly, that the author or in this case, the maker of the said video is the son of the complainant who has not stepped into the witness box to prove the genuineness of the said document. Thirdly, that no where in the video is it categorically admitted by the accused that he has to pay a sum of Rs.8,75,000/- to the complainant. To much surprise, he doesn't even know the exact amount of the cheque in question which has been dishonoured which bolsters the story of the accused that the cheque in question was given for security purposes at the time of taking money from the complainant and not in discharge of the liability as stated in the complaint.
34. On the basis of the above discussion, it is hereby held that the video conversation contained in a pen drive and its transcript both of which are Ex-CW1/15 and Ex-CW1/16, respectively, are inadmissible in evidence, for two reasons, firstly, that they are not in accordance with the rules of evidence, more particularly, certificate u/s. 65B of Indian Evidence Act is not annexed herewith and secondly, that the same have not been placed on record by the maker of the CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 22 of 26 document, i.e., in case of the video, by the son of the complainant himself and in case of transcript, by the person who prepared the same and because the author/maker of the said electronic evidence has not stepped into the witness box to prove its genuineness and correctness.
35. It is to be noted here that during cross-examination of CW1, it has been admitted by the complainant that out of the total amount of Rs.15,75,000/-, an amount of Rs.3,24,000/- has been paid to the accused by the nephew of the complainant and he does not also have any written authority from his nephew to recover the said amount. When he was asked a specific question as to whether he can bring his nephew as a witness in the witness box, then he answered in the affirmative. However, it is a matter of record that the nephew of the complainant has never stepped into the witness to prove the fact that the amount of Rs.3,24,000/- has been paid by the nephew of the complainant to the accused at the instance of the complainant. Accordingly, it cannot be said that the amount of Rs.3,24,000/- has been paid by the nephew of the complainant to the accused at the instance of the complainant and the said fact stands not proved.
36. It is to be noted here that during cross-examination of CW1, it has been admitted by the complainant that out of the total amount of Rs.15,75,000/-, an amount of approximately Rs.2,00,000/- to Rs.2,50,000/- has been paid by him to the CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 23 of 26 accused no.2 who is the son of the accused no.1. It is the plea of accused no.1 that he has never expressly or impliedly undertaken the liabilities of accused no.2 and accordingly, he cannot be made liable to pay the amount due by the accused no.2. In my considered opinion, the complainant has failed to show that the amounts paid to both accused no. 1 and accused no.2 are part of same transaction and even otherwise, the complainant has failed to show that accused no.1 has ever undertaken the liabilities of accused no.2. Perusal of the evidence by way of affidavit shows that several payments have been made by the complainant to both accused no.1 and accused no.2 on the very same day. As per the complaint itself, an amount of at least Rs.2,40,000/- has been paid to accused no.2 for which only accused no.2 can be made liable and there are several amounts against which no specification has been given by the complainant as to the person to whom the payment has been made. There is nothing on record to show that the accused no.1 had undertaken the debt and liabilities of accused no.2 also.
37. Reliance is place by this court on the judgment of Hon'ble High Court of Delhi in Starkey Laboratories India Pvt. Ltd. vs. Sanjay Gujral decided on 24.09.2019 in Crl.L.P. 492/2017, and Alliance Infrastructure Project Pvt. Ltd. v. Vinay Mittal, 2010 SCC OnLine Del 182, wherein it has been held that if the liability as on the presentation of the cheque is not equivalent to the amount of cheque in question CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 24 of 26 and the cheque has been presented after some part-payment has been received by the complainant, then the accused cannot be held liable for offence u/s. 138 NI Act.
38. Admittedly, the complainant has already received an amount of Rs.7,00,000/- and he can recover the amount of Rs.2,40,000/- only from accused no.2. Furthermore, the right to recover the amount of Rs.3,24,000/- rests with the nephew of the accused. Thus, the actual amount due from the accused no.1 towards the complainant as on the date of drawal or presentation of the cheque in question is only Rs.3,11,000/- even if the entire case of the complainant is admitted to be true.
39. Thus, it cannot be said that there was a liability in favour of the complainant to be paid by accused no.1 of an amount of Rs.8,75,000/- which is the amount of cheque in question and accordingly, the accused has been able to show that even if the entire case of the complainant is believed to be true then also there is no liability of the accused equivalent to the amount of cheque in question and hence, he has raised a probable defence and has been able to rebut the presumption u/s. 118(a) r/w. 139 NI Act.
Findings of the Court
40. Thus, in my considered opinion, complainant has not been able to prove its case beyond reasonable doubt qua the accused as he has not been able to prove even the contents CC No. 8282/2019 Devi Ram vs. Ramniwas & Anr. Page 25 of 26 of the complaint and it cannot be said that there was legally enforceable debt or liability existing in favour of the complainant and against the accused as on the date of issuance or the presentation of the cheque in question equivalent to the amount of cheque in question. The accused has been able to raise a probable defence, by proving on the basis of preponderance of probabilities and by casting a serious doubt in the case of the complainant that the entire amount of Rs.15,75,000/- has not been given by the complainant to the accused no.1 and even if the entire case of the complainant is admitted to be true then also there is no liability equivalent to the amount of cheque in question, and that the complainant has not been able to prove his case beyond reasonable doubt. The accused has thus been able to rebut the presumption u/s. 118 r/w. section 139 NI Act.
41. In view of the aforesaid, accused Ramnivas, S/o Late Sh.
M.R.Singh, is hereby acquitted of offence under section 138 Negotiable Instruments Act.
ANSHUL Digitally signed by
ANSHUL SINGHAL
SINGHAL Date: 2022.07.29
15:13:51 +05'30'
Announced in Open Court (Anshul Singhal)
on 29.07.2022 MM(N.I. Act)-03/NDD/RACC/ND
CC No. 8282/2019
Devi Ram vs. Ramniwas & Anr. Page 26 of 26