Delhi District Court
Gurcharan Singh vs . Tilak Raj Cc No.5428/11 on 22 February, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-1,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
Gurcharan Singh Vs. Tilak Raj CC No.5428/11
22.02.2014
JUDGMENT
(Brief reasons for decision as required by section-264 Cr.PC.) To my mind the first question in the present case to be asked is about the necessity of issuance of two cheques of the same date from the same bank by the accused to the complainant in discharge of a single loan amount. No explanation has been provided by the complainant. I do not find any ground on which this can be justified. If any person wants to pay some amount to another person through cheque on a single date, he will naturally issue one single cheque of the total amount and even the receiver will prefer one single cheque instead of two cheques. Of course, this may be subject to a condition that if such person does not have the entire amount in his own bank account to complete the total amount to be given, he may issue one cheque of one bank account for some some amount and second cheque from his other bank account for remaining amount. Otherwise, no one will issue more cheques of same date to same person to pay a single loan amount and no one will receive more cheques of same date for the same. Though the human behaviour differs, however, as a standard of reasonable prudent person, the above inference may be accepted.
2. The complainant claims that he had advanced a sum of Rs.3,80,000/- as a friendly loan to the accused and to discharge the same, the accused issued the instant two cheques.
3. I have heard both the sides and gone through the record. The present complaint cannot succeed for more reasons than one which are enlisted hereinafter:
(i) The complainant claims that he had issued a friendly loan but then in the Paragraph-4 of his complaint, he claimed that accused had executed various documents alongwith Promissory Note and Receipt. If the loan was given as a friendly loan, there was no necessity for execution of several documents. Be that as it may.Gurcharan Singh Vs. Tilak Raj CC No.5428/11 1
(ii) In the cross-examination, however, the complainant changed his version and stated that he had not made any writing or document regarding giving or taking of the said friendly loan. This is clearly in direct contradiction of his earlier claim made in complaint and affidavit.
(iii) Even further the complainant subsequently produced a Promissory Note cum Receipt. This is again in contradiction with his statement in cross-examination.
(iv) The complainant has claimed that loan was a friendly loan, however, his cross-examination does so that he was having only remotely acquaintance with the accused.
(v) Even the complainant has not been able to specify the dire need of accused to avail the said amount of friendly loan.
(vi) Both the cheques are showing very different nature despite the fact that both are of same date from same bank account and there is nothing to infer that the same were given on different dates. One cheque is filled up in Hindi whereas the other cheque is filled up in English. There is no explanation given by the complainant.
(vii) Even the complainant has not been able to specify from where he arranged the amount of Rs.
3,80,000/- to be paid the accused. In the cross-examination, he accepted that he cannot show whether in his bank account there was any transaction of Rs.3,80,000/- on the date of alleged friendly loan.
(viii) The Promissory Note cum Receipt subsequently filed by the complainant also goes against him. As per complaint and affidavit, when the loan was advanced, the accused executed various documents alongwith Promissory Note and Receipt. The loan was purportedly advanced on 14.07.2010. However, the Promissory Note cum Receipt bears a date as 15.09.2010. How this can happen has not been explained by the complainant.
(ix) Interestingly, the date on the cheque i.e. 15.09.2010 is the same which is mentioned on the Promissory Note. If cheques were already received by the complainant, there was no necessity for the accused to sign Promissory Note on 15.09.2010. On the other hand, if Promissory Note was executed on the date of loan i.e. 14.07.2010, there was no necessity to mention a date as 15.09.2010 in the Promissory Note.
Gurcharan Singh Vs. Tilak Raj CC No.5428/11 2(x) If we construe the date of 15.09.2010 mentioned in Promissory Note as a date on which the accused was to pay the amount, the said factum should have been clarified in the Promissory Note itself. The Promissory Note is talking about payment on demand or order and does not talk about the time of payment. Even more the date i.e. 15.09.2010 written on Promissory Note is preceded by a term "cash" and "value received in". This shows that this was not a date of repayment.
(xi) Even otherwise the Promissory Note cum Receipt does not inspire confidence. The complainant claims that signature and thumb impression available on this document were made by the accused in the presence of complainant. The complainant, however, accepts that he was not having black Ink Pad in his home and that such Ink Pad was brought by the accused himself. It is highly improbable that any person will carry a blank Ink Pad with him. When the accused could bring filled up Promissory Note cum Receipt (claimed by the complainant), there was hardly any justification as to why he could not sign and affix his thumb impression on the said document before hand. Interestingly, there was no witness to this document, therefore, there cannot even be a preposition that accused should have signed the document in the presence of any witness.
4. The above enlisted circumstances show that the complainant has no foundation to built his claim made in his complaint regarding advancement of loan and receiving of cheques in discharge thereof.
5. I am not oblivious of the fact that there are mandatory presumptions of law but, however, such presumptions are always rebuttable even by preponderance. It is well settled law that the mandatory presumptions of law can only be inferred in furtherance of prosecution stand and not in derogation of the same. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise.Gurcharan Singh Vs. Tilak Raj CC No.5428/11 3
But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt-see Mahesh Prasad Gupta v. State of Rajasthan(1). Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
6. In view of the above, I am of the opinion that complainant has failed to establish the liability and the accused has been successful in rebutting the presumptions. As such accused is entitled for an acquittal from the charges in the present complaint case i.e. u/s-138 NI Act.
7. In view of the above, the accused Tilak Raj is acquitted from the charge i.e. u/s-138 NI Act in the present complaint case.
8. A copy of this order be placed on the official website of the District Courts.
(RAKESH KUMAR SINGH) MM-(NI Act)-Central-01/THC/Delhi 22.02.2014 Gurcharan Singh Vs. Tilak Raj CC No.5428/11 4