Delhi District Court
Page No. 1 To 9 Surya Dev vs . Puran Chand on 14 July, 2014
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 289/11
b. Date of the commission of the offence : 06/06/2011
c. Name of the Complainant : Surya Dev
d. Name of Accused person and his parentage: Puran Chand,
and residence S/o Sh. Ram Lal, R/o 19/35,
Trilok Puri, Delhi91.
e. Offence complained of : Dishonoring of cheque for
"Funds Insufficient".
f. Plea of the Accused and his examination (if any): Not guilty
because Accused had given
a blank signed cheque to the
complainant as a security
towards a loan transaction.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 03.07.2014.
i. Order pronounced on : 14.07.2014
Page No. 1 To 9 Surya Dev Vs. Puran Chand
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Brief reasons for decision:
1.Brief facts necessary for the disposal of this case are that on 05.07.2011, a complaint was filed by the Complainant under section 200 Cr.P.C read with 138 of the Negotiable Instruments Act (NI Act), whereby cognizance was taken for the offence under section 138 of the NI Act and Accused was summoned before this Court.
2. It has been alleged in the Complaint that the Complainant had advanced financial assistance of Rs. 1,10,000/ without any interest to the Accused for the sake of his old friendship and relationship. It is further stated that on the same day Accused approached Complainant's residence and to discharge his liability, Accused issued a post dated cheque of Rs. 1,10,000/ (Ex. CW1/1) bearing number 327989 dt. 01.03.2011 drawn from State Bank of India, Ansari Nagar, Delhi. However, when the said cheque was presented by the Complainant for payment at his bank i.e. Punjab National Bank, Madhuban, Shakarpur, Delhi, same was dishonoured with the remarks "Funds Insufficient"
vide cheque returning memo issued on 10.03.2011 (Ex. CW1/2). Thereafter, the said cheque was again presented for payment in his bank by the Complainant and it was again dishonoured with the reason as "Funds Insufficient" vide cheque returning memo dt. 29.04.2011 (Ex. CW/3). It is further stated that the Complainant sent a legal demand notice dt. 21.05.2011 (Ex. 1/5) through speed post receipts Ex. 1/8 and Ex. 1/9 to the Accused. However, it is stated that till Page No. 2 To 9 Surya Dev Vs. Puran Chand 3 date no payment of dishonoured cheque has been made and hence the present complaint case is filed.
3. Notice was framed against the Accused under Section 138 NI Act on 03.04.2012, to which he pleaded not guilty and claimed trial. Plea of Defence of the Accused was also recorded on the same day where it has been stated by the Accused that though the Cheque in question bears his signature and account number, he did not fill any other content of the cheque. He has further stated that he had handed over the said cheque to the Complainant as he had taken a loan of Rs. 30,000/ from the Complainant on interest @ 5 % per month. It is further stated by the Accused that he had already paid an amount of Rs. 25,000/ to the Complainant in cash. However, he has denied receipt of the legal demand notice issued by the Complainant.
4. To prove his case, the Complainant has tendered on record his Pre summoning evidence by way of affidavit Ex. CW1/A and examined himself as CW1. After cross examination of the CW1 by the counsel for the Accused, CE was closed.
5. In order to prove his innocence, the Accused examined only one witness namely Ami Chand, DW1.
6. I have heard the arguments of both the parties at length and have gone through the entire record carefully.
7. Counsel for the Complainant has questioned the veracity of statement given by DW1 by stating that he is an interested witness as he himself Page No. 3 To 9 Surya Dev Vs. Puran Chand 4 has taken loan from the Complainant. It is further argued by the counsel for the Complainant that the evidence given by DW1 is hear say whereby there is room for fabrication and hence the said witness can not be believed.
8. On the other hand, the Counsel for the Accused has argued that the cheque in question is not handwritten rather it is type written. It is argued that the Accused had given a blank signed cheque to the Complainant as a security against the loan which he had taken. It is further argued that the Complainant is a money lender and he has given loan to 10 to 12 other people as has also been admitted by him in his cross examination while deposing as CW1. Further pointing out on the the cross examination of the Complainant, it is put forth by the counsel for the Accused that pronote as stated to have been executed between the Complainant and Accused has not been brought on record by the Complainant. Hence, it is argued that the Complainant has not been able to bring sufficient evidence on record whereby presumption u/s 118 & u/s 139 of NI Act can be raised against the Accused.
9. For presumptions to be raised under sections 118 and 139 of the Negotiable Instruments Act, we first need to see whether basic ingredients under section 138 of the NI Act are proved or not. The Complainant has to prove his case before the court for the rebuttal to be brought in by the Accused. Let us first examine the evidence brought on record by the Complainant to support his case to ascertain whether the case of the Complainant is strong enough for presumptions under section 118 and 139 of the NI Act to be raised in his favour.
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10. The first piece of evidence which the Complainant presents to prove his case, in cases pertaining to dishonour of cheques is his own Affidavit whereby he swears upon the statements he makes and also exhibits relevant documents which prove his averments to be true. As far as the affidavit in this case is concerned, it fails to mention the date on which the alleged financial assistance was given by the Complainant to the Accused. Space has been conveniently left blank in the affidavit for the said indispensible detail. Hence, the Complainant has himself not proved the date of transaction which is the basis of this case. Further, the said transaction could also have been proved by any other proof of the same. It is pertinent to note here that in his affidavit, the Complainant has mentioned that the Accused had also executed a pronote for the alleged loan transaction in favour of the Complainant which as per the affidavit has been exhibited as Ex. CW1/4. The said pronote has not been brought on record. However, on the contrary it may be noted here that in his crossexamination while deposing as CW1, the Complainant has stated that he has not mentioned about the said pronote in his affidavit. Hence, the Complainant does not seem to be well aware about the facts contained in his affidavit. Further, Complainant has stated that he came to know about the misplacement of the said pronote at the time of filing the present case and hence the said pronote has not been filed on judicial record of this case. Presuming that the said pronote was in fact misplaced by him and the Complainant got to know about the said misplacement at the time of filing this Complaint, then it is beyond this Court's reasoning as to Page No. 5 To 9 Surya Dev Vs. Puran Chand 6 why was the same mentioned as well as named in his affidavit as an Exhibit. Further, despite such misplacement of the pronote, no complaint has been filed by the Complainant in this regard. In view of the above discussion, the loan transaction itself comes under the scanner of doubt.
11. It is also important to take note of the fact that two other exhibits though mentioned in the Complainant's affidavit have not been placed on record i.e. Ex. CW1/6 and Ex. CW1/7, the postal receipts. However, no explanation whatsoever has been given regarding the absence of the said documents. The Complainant has filed incomplete documents to support his case though they have been mentioned in the affidavit. Said missing details create a doubt as to the credibility of statements mentioned in the affidavit.
12. The most important document in any case under section 138 of NI Act is the dishonoured cheque. It is therefore important to examine the said cheque in question, which as per the Complaint was duly filled in before being advanced to the Complainant by the Accused and as per the plea of defence was given towards the security of the loan transaction as a blank signed cheque. Perusal of the cheque reveals that it is a cheque wherein all the contents including the date and amount have been typed therein. Typed contents of the cheque create a doubt on the said contents being filled by the Accused himself. On any cheque issued by a reasonable common man as a matter of general practice, contents are handwritten. It is mainly on cheques issued by Banks and Companies that we find that the contents are not filled by hand but are machine Page No. 6 To 9 Surya Dev Vs. Puran Chand 7 printed/types for which special printers are installed. No logical reasoning can be found as to why would the Accused hand over a typed cheque to the Complainant and that too on the same day when he took the loan. On the contrary, when the Accused could have signed the cheque he could also have conveniently filled in the contents of the same as well in his own handwriting. On the other hand, if we take the case of the Accused whereby he has stated in his plea of defence that he gave a blank signed cheque, the probability that the contents on the cheque could have been typed by a third person cannot be ruled out. Hence, again a doubt is created on the version put forth by the Complainant.
13. As is already discussed above, the date of loan transaction has not been proved by the Complainant. It is also stated by the Complainant in his Complaint that the Accused had taken the financial assistance from the Complainant to return the same as soon as possible. No specific period for which loan was given has been mentioned. If the version of the Complainant is to be believed, no reasoning has been given as to why did the Accused come over again at the residence of the Complainant and hand over a duly filled in Post dated cheque to the Complainant. If the money was already handed over by the Complainant in the first visit of the Accused, it is questionable as to what urgent necessity made the Accused visit the Complainant again and hand over a signed postdated cheque that too after getting the contents therein typed. Various loopholes can be found in the alleged series of events as put forth by the Complainant.
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14. At this stage it is significant to note that as also referred in the case titled Vijay vs. Laxman & Anr. [(2013)3SCC86], the Honourable Apex Court has held in the case titled Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Pyarelal [(1999) 3 SCC 35] that Though the evidential burden is initially placed on the defendant by virtue of S.118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption 'disappears'. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden.
15. In the present case as well, it would not be wrong to state that the Complainant has not been able to discharge his burden fully well, while on the other hand, the Accused by taking his plea of defence and crossexamining the Complainant has created sufficient dent in the case of the Complainant so as make the truthfulness of the same doubtful.
16. It is also noticeable that once Accused has managed to create any probable doubt over the veracity of Complainant, it is an unalienable duty of Complainant to prove his case on strength of his credible evidence. The court is Page No. 8 To 9 Surya Dev Vs. Puran Chand 9 also mindful of basic tenet of criminal jurisprudence that benefit of any reasonable doubt has to be given to the Accused. It is also a settled position of law that if there are two possible versions, the version favouring the innocence of Accused should be opted by the court.
17. In view of the above discussion, facts and circumstances of the case, applicable law and submissions of both parties, this court is of considered opinion that the Accused has created a reasonable doubt over the authenticity of the story of the Complainant. I have no hesitation in holding that the Complainant has failed to bring on record credible evidence / proof to demonstrate that he had paid Rs. 1,10,000/ to the Accused and the Accused had issued cheque in question in discharge of any existing liability at the time of issuance of the same. In upshot of aforesaid discussion, the Accused is hereby acquitted for the offence u/s 138 of NI Act in this case.
Announced in the open court (VIDHI GUPTA)
on 14th Day of July, 2014. MM/KKD/Delhi
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