Delhi District Court
Waseem Khan vs The State Of Nct Of Delhi on 12 December, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Appeal No. : 419/2018
CC No. : 467448/2016
U/s : 138 N.I. Act
In the matter of :
Waseem Khan
S/o Mohd. Hanif Saifi
R/o House No. 146, Gali no. 6,
E Block, Sangam Vihar, New Delhi
...... Appellant
VERSUS
1. The State of NCT of Delhi
2. Man Mohan Singh
S/o Sh. Sukhbir singh
R/o House no. 607/1, Devli Village, New Delhi
....... Respondent
Date of Filing : 31.10.2018
Date of Arguments : 27.11.2018 & 6.12.2018
Date of Order : 12.12.2018
O R D E R
1. This is an appeal filed by appellant aggrieved by the judgment dated Crl. Appeal No. : 419/2018 1/12 13.08.2018 and order on sentence dated 09.10.2018 passed by Ld. Trial court whereby appellant was convicted u/s 138 of N.I. Act and was sentenced to undergo SI for one year and to pay fine of Rs. 13 lacs, out of which Rs. 12.50 lacs was to be paid to the complainant as compensation and Rs. 50,000/ was directed to be deposited in PM Relief Fund. In default of payment of fine, convict was further sentenced to undergo SI for six months.
2. In terms of complaint of complainant, accused had taken friendly loan of Rs. 9,50,000/ from complainant and in discharge of said liability, he had issued two post dated cheques for sum of Rs. 50,000/ and Rs. 9 lacs, which were dishonoured on presentation with remarks " account blocked". Legal notice sent to accused/appellant yielded no result, hence complainant/respondent was forced to file complaint u/s 138 N.I. Act against the appellant/accused.
3. Notice u/s 251 Cr.P.C. was framed against appellant/accused to which he pleaded not guilty and claimed trial. Complainant examined himself as CW1 and Sh. Ashutosh Aggarwal, witness from Syndicate Bank as CW2 before trial court, whereas in defence, no witness was examined by the accused. After conclusion of trial, Ld. Trial court vide impugned judgment, convicted the appellant for the offence u/s 138 N.I. Act and sentenced him accordingly, which orders are under challenge before this court.
4. CW1 in his affidavit of evidence deposed about disbursement of friendly loan in favour of accused in sum of Rs. 9,50,000/ against which two post dated cheques were issued by the appellant/accused for an amount of Rs. 50,000/ and Rs. 9 lacs which were dishonoured on presentation for the reason " Account Crl. Appeal No. : 419/2018 2/12 Blocked". Accused in reply to the notice framed u/s 251 Cr.P.C. had denied the receipt of any loan from the complainant who had stated that rather complainant was not even known to him . As stated, accused/appellant had lost his purse in which blank signed cheques were kept. Cheques in question had not been filled by him or on his instructions and the complainant had misused the lost cheques.
5. In statement recorded u/s 313 Cr.P.C. r/w sec. 281 Cr.P.C., accused reiterated that he had not taken any loan from the complainant. His cheques were lost and he had already lodged police complaint regarding the same. As stated, he had not filled the particulars on the cheques and therefore, there was no question for issuance of said cheques towards discharge of any liability, which had been misused by the complainant.
6. Photocopy of complaint dated 5.12.2011 filed with the police and one letter dated 5.12.2011 sent to bank of accused with regard to issuance of Stop Payment Instructions qua some lost cheques were relied upon by the accused and had been sent to complainant alongwith reply to legal notice. The said documents were tendered in evidence by complainant himself as Ex. CW1/9 (colly). It was submitted by Ld. Counsel for complainant that photocopy of complaint dated 5.12.2011 lacked any acknowledgement by the concerned police station and similar is the situation with letter dated 5.12.2011 which again lacked any receipt or acknowledgement from the bank concerned .
7. Per contra, it was submitted by Ld. Counsel for appellant that appellant did not have any relation with the complainant and the cheques in question had Crl. Appeal No. : 419/2018 3/12 been lost in year 2011 in respect of which a complaint dated 5.12.2011 was also filed by appellant as well as stop payment instructions were issued to bank concerned.
8. Vide order dated 9.1.2018 of Ld. Trial court, record from concerned police station regarding the police complaint dated 5.12.2011 annexed with the reply to legal notice as well as record from concerned bank of accused regarding the letter dated 5.12.2011 was summoned by the court suomotto. In terms of report received from SHO, Sangam Vihar, record of complaint dated 5.12.2011 was not available as all the records of complaints/diaries upto 31.12.2014 had been destroyed , whereas witness who appeared on behalf of ICICI bank filed letter Ex. CW2/A on record in terms of which, the account of appellant was lying dormant for last ten years, so no instructions could have been executed at any given point of time. As stated, no stop payment request dated 5.12.2011 had been received by ICICI Bank Ltd.
9. The copy of complaint dated 5.12.2011 though is found bearing stamp of P.S. Sangam Vihar, which is not well legible and the date of complaint/registration in diary/receipt cannot be ascertained from the stamp, same being illegible. The letter addressed to bank was issued vide registered letter against receipt no. 4869 which is part of record. Though the date is again not reflected upon the said receipt.
10. It was submitted by Ld. Counsel for appellant that complainant has failed to bring on record any written agreement/promissory noted executed between the parties in respect of loan of such a huge amount of Rs. 9,50,000/, which in Crl. Appeal No. : 419/2018 4/12 terms of own contention of complainant, was given in cash, whereas amount more than Rs. 20,000/ cannot be given in cash. As submitted, complainant is not a money lender and is not having any money lending certificate, who has nowhere mentioned in his complaint, as to how he had arranged the loan amount, besides the fact that the loan amount has not been shown in ITR by the complainant.
11. On behalf of accused, plea was also raised regarding the financial incapacity of complainant to advance amount of Rs. 9,50,000/ as loan. CW1 had stated that he had taken Rs. 9,50,000/ from his father and handed over the same to accused. As admitted, no promissory note or agreement had been signed between him and the accused at the time of giving the loan amount. It was noted by Ld. Trial court that complainant has summoned the bank record of his father to show that at relevant time period, his father had given him the money which he had further given as loan to the accused, which , as observed, corroborated the plea of complainant that he had financial capacity to pay the loan amount of Rs. 9.50 lacs to the accused.
12. CW1 in his cross examination stated that he is 12 th passed. He is electrician and is having electrical shop in Delhi, besides having agricultural land at Bharatpur, Rajasthan. His earning from the electrical shop is Rs. 30,000/ per month and from the agricultural land, he is earning Rs. 23 lacs per annum. He, as admitted, was an income tax assessee but his father had been depositing the income tax in his name for the last 10 years and he did not know how much tax was deposited by his father.
Crl. Appeal No. : 419/2018 5/1213. It was argued by Ld. Counsel for appellant that complainant has failed to prove his financial capacity to give such a huge loan of Rs. 9.50 las to the accused. Complainant had not shown the loan in question in his income tax returns and it is not digestible that his father had filed income tax return in his name and he was not aware about the income tax paid by him for the last many years.
14. In terms of record, CW1 had claimed that accused was known to him for a long time and they had cordial relations. However, in cross examination of CW1, he admitted that though he knew the accused for the last more than 10 years but did not know about education qualification of accused. He did not visit the house of accused at the time of birth of his child and he did not know the year of birth of his child. As stated, accused used to call his wife as Begum in presence of complainant but complainant never used to talk with the wife of accused and also did not know the actual name of his wife except 'Begum'. The complainant can be given the benefit for not knowing the details of family of accused but surprisingly, he further stated that he did not know the name of accused. Accused, as stated by complainant was having his carpenter showroom at Sangam Vihar and he had told his monthly income as approximately Rs. 1 lac to Rs. 1,50,000/ to the complainant. Accused, as stated, used to take personal loan of Rs. 2 lacs or 3 lacs from the complainant even prior to the loan in question.
15. As was observed in K. Subramani Vs. K. Damodara Naidu Criminal Appeal no. 2402 of 2014, the presumption mandated by section 139 of N.I. Crl. Appeal No. : 419/2018 6/12 Act includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested". Hence, the material aspect regarding the cheques having been issued against the discharge of legally recoverable debt is required to be considered.
16. Apparently, accused was not very well known to the complainant. He, as claimed by him, was earning Rs. 30,000/ per month from his electrical shop, besides the earnings of Rs. 23 lacs per year from agricultural income, though no documents have been placed on record by him pertaining to his earnings. Nevertheless, even if his contention is taken as correct on record with regard to his earnings, he agreed to advance the huge amount of Rs. 9.5 lacs to the accused as loan for which no agreement/promissory note or any written document/receipt was prepared, as admitted by him. Further, the loan of Rs. 9.5 lacs was not paid through cheque but was allegedly paid in cash. Even if it is believed that the amount of Rs. 8 lacs was given by father of complainant to the complainant and the same was used by complainant for giving loan to the accused, then also perusal of bank statement of father of complainant reveals that the amount was credited in the account of one Man Mohan on 3.3.2012. Complainant himself has not brought on record his own statement of account reflecting the said credit entry. Besides that, as rightly submitted by Ld. Counsel for appellant, it is not believable that for giving the loan to accused in October 2012, father of complainant had transferred the amount in his account Crl. Appeal No. : 419/2018 7/12 in the month of March itself. In terms of statement of the father of complainant, he was getting the salary from his department in sum ranging from Rs. 6000 to Rs. 8000/ but had huge deposits in lacs in his account, which were not reflected/shown in the Income Tax Records filed on record.
17. It may also be noted that it requires much of the faith and the good relations between the parties to advance loan amount of Rs. 9.5 lacs which amount seemingly is huge, considering the financial status of the parties but the same was advanced in cash to the accused by complainant without even knowing the normal details of the accused and that too in cash. The amount allegedly had been transferred in the account of complainant by his father , thereby even if the loan was advanced, the same could have been transferred in the account of accused and no explanation is placed on record for the alleged withdrawal in cash from the account for handing over of the same to the accused without obtaining any document/receipt etc. for the payment. The abovesaid makes the defence of accused plausible that the loan amount was never advanced to him by the complainant and the complainant was not even known to him.
18. Further in terms of the claim of complainant, the cheques were given to him at the time of advancement of loan. The said cheques were dated 7.3.2013 for Rs. 50,000/ and Rs. 9,00,000/ bearing no. 395396 and 395398 respectively. Accused has not disputed his signatures on both the cheques but as stated, the particulars on the cheques were not filled up by him. The complainant maintained that accused had handed over the cheques on the same Crl. Appeal No. : 419/2018 8/12 day when he had taken the loan from him and accused had given duly filled in cheques to him.
19. Perusal of the cheque bearing no. 395396 reveals that the particulars filled in cheque were written in Hindi, whereas the name and date in cheque bearing no. 395398 as well as all the particulars of cheque except for the signatures are in same ink and in same handwriting and amount and name was also written in English in words. Further, the cheques allegedly handed over to the complainant are bearing number 395396 and 395398, which were issued together by accused, therefore ought to have been in the serial order and no reason is there with regard to issuance of two cheques of same date , in different serial order for different amount of Rs, 50,000/ and Rs. 9 lacs respectively.
20. Throughout it was maintained by the appellant that he had never obtained any loan from the respondent and he did not have any liability to pay the amount of cheques in question. In cross examination of CW1 also, all the questions and suggestions put to CW1 were following the line that the accused had not taken any loan from him, however a suggestion was put to CW1 that he had been given blank signed cheques which suggestion was declined by CW1 by submitting that accused had given dully filled in cheques to him .
21. Ld. Counsel for appellant while placing reliance upon AIR 1969 Gujarat 69 Keli Trikam Jivraj & Anr. Vs. The State of Gujarat submitted that it was the inadvertence of the counsel for appellant. As was noted in the authority (supra), suggestions put in cross examination are no evidence at all against the accused and on the basis of such suggestions, no inference can be Crl. Appeal No. : 419/2018 9/12 drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions, the lawyer of the accused, if he thinks fit and proper, may not put the entire case of accused in the cross examination and therefore accused shall be entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is that in a criminal case, a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation".
22. As already noted, the abovesaid suggestion put in cross examination of CW1 was contrary to the defence taken by appellant during the trial and accordingly this suggestion needs to be taken as the error on the part of counsel as well as without the instructions from the accused/appellant who should not be burdened with the incorrect suggestion put to CW1 contrary to his own defence.
23. It may also be noted that the accused had pleaded loss of many cheques . Similar other matter was also filed against him for dishonour of two cheques bearing no. 395395 and 395399, both dated 7.3.2013 in sum of 50,000/ and Rs. 5 lacs. In the said matter also, the complainant was not very well known to the accused, whereas the accused had claimed, not knowing the complainant at all and misuser of his cheques which had been lost. It is submitted by counsel for complainant that complainants of both the cases are friends and they must have received the lost cheques of the accused and both of them in connivance with each other, distributed the cheques amongst themselves by filling up the Crl. Appeal No. : 419/2018 10/12 particulars and by filing of the false complaints against the appellant. Though there is no evidence brought on record by the accused nor any such suggestion was put to the complainant with regard to his relationship or friendship with the complainant of the other matter. Nevertheless, the facts and circumstances of the case, as already discussed, points out towards the defence of the appellant being probable, as noted in detail. Reliance is placed upon 2015 Cri.L.J. 2795 P.L. Vairavan Vs. A.L. Selvakumar, wherein it was observed that " the burden of proof to rebut the presumption is not so strict on the defence and it is enough if he is able to make out a probable defence . Something which is probable has to be brought on record for getting the benefit of shifting the onus to prove upon the complainant. In other words, to disprove the presumption, 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 non existence was so probable that a prudent man would, under the cirumstances of the case, shall act upon the plea that it did not exist".
24. Reliance is further placed upon Vipul Kumar Gupta Vs. Vipin Gupta 2012 (8) RCR (Cri) 1799 and Kulviner Singh Vs. Kafeel Ahmed 2014 (1) RCR (Cri) 547 relied upon by Ld. Trial court, wherein interalia it was observed that accused has only to create a doubt in the version of appellant while complainant has to prove the guilt of accused beyond reasonable doubt.
25. In the instant matter also, for want of any documentary and concrete evidence in support of case of complainant regarding the chques having been issued against the discharge of any legal liability and the advancement of Crl. Appeal No. : 419/2018 11/12 friendly loan, apparently to almost an unknown or lesser known person by complainant, it turns out to be a case where the appellant/accused has remained successful in raising doubt and rebutting the presumption regarding the cheques having been issued against discharge of any legally recoverable debt, hence deserves to be acquitted.
26. Accordingly, judgment of conviction dated 13.08.2018 and order of sentence dated 09.10.2018 passed by Ld. Trial court accordingly set aside while allowing the appeal. TCR alongwith copy of this order be sent back to the trial court. Appeal file be consigned to record room.
Digitally signed SAVITA by SAVITA RAO
RAO Date: 2018.12.12
16:09:07 +0530
Announced in the Open Court (Savita Rao)
Today on 12.12.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Appeal No. : 419/2018 12/12