Delhi District Court
Complainant vs Sh. Deepak Goyal S/O Sh .Tara Chand Goyal on 25 August, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURT :DELHI
Complaint No.125/08
ID no. 02402R0416942005
PS Shahdara
Sh. Anil Jain S/o Sh. A.P. Jain
R/o J7/3, West Jyoti Nagar, Delhi94
............ Complainant
Versus
Sh. Deepak Goyal S/o Sh .Tara Chand Goyal
R/o A13, Naveen Shahdara, Delhi.
Also at:
C/o M/s. Chetak Cables Pvt.Ltd.
1/425/55B, Gali No.1B,
Friends Colony, G.T. Road, Delhi95
................ Accused
Offence complained of : U/S 138 Negotiable
Instruments Act
Plea of accused : Not guilty
Date of Institution of the complaint : 30/07/2005
Date on which judgment was reserved: 19/08/2010
Date of decision : 25/08/2010
Decision : Acquitted
JUDGMENT
1. Briefly stated, the relevant facts of complainant's case are that accused took a friendly loan of Rs.1,90,000/ from the complainant in the month of December 2004 for his urgent need CC no.125/08 Page 1/11 on 10/12/2004 and 11/12/2004. Accused promised to return the same to the complainant within three months. Accused issued three cheques to the complainant in discharge of his liability with following particulars:
1. Cheque no.548628 dated 27/03/2005 for Rs.70,000/.
2. Cheque no. 548629 dated 31/03/2005 for Rs.70,000/.
3. Cheque no. 548633 dated 03/04/2005 for Rs.50,000/.
2. All the aforesaid cheques were issued in the name of the firm of the complainant i.s. M/s. V. Electroplaters. All cheques were given by the accused on 27/03/2005. At the time of issuing the aforesaid cheques, accused assured the complainant about their encashment on their presentation.
3. Complainant deposited the cheque dated 27/03/2005 in his bank i.e. Corporation Bank, Kabir Nagar, Delhi three times in the account of his firm, cheque dated 31/03/2005 once and cheque dated 03/04/2005 twice, but the all the cheques were dishonored with remarks 'funds insufficient'.
4. Lastly, cheque dated 03/04/2005 was presented for encashment by the complainant on 17/06/2005, but the same was returned back by the banker of accused vide returning memo dated 20/06/2005 with remarks 'funds insufficient'. Cheques dated 27/03/2005 and 31/03/2005 were presented by the complainant in his bank on 23/06/2005 and the same were returned back vide returning memo dated 25/06/2005 with CC no.125/08 Page 2/11 remarks 'funds insufficient'. Complainant sent a legal notice dated 4/07/2005 through Registered AD post as well as UPC to the accused at his both addresses, which was duly served upon him, but accused failed to make the payment of loan amount within stipulated time. Hence, the present complaint.
5. Accused was summoned and was explained notice of accusation on 12/03/2008, to which he pleaded not guilty.
6. Complainant examined himself as CW1 in support of his case. Thereafter, accused was examined under Section 281 Cr.P.C. on 28/08/2009. Accused examined two witnesses in support of his defence i.e. himself as DW1 and his father Sh. Tara Chand Goel as DW2.
7. Both parties made their rival arguments and filed their written arguments. I have given due consideration to the rival contentions and perused the record of this case.
8. Accused relied upon following case laws:
1. Krishna Janardhan v/s. Dattatraya, 2008 AIR SC 1325.
2. Rajender Prasad vs. Santosh Kumar, 2008 CRLJ 2955.
3. Yashpal vs. Vijay Kumar, 2009 (4) Crimes 590.
4. Vinay Parulekar vs. Pramod, 2008 CRLJ 2405.
9. In this case, accused has taken plea that three cheques were given by him to the complainant towards security in a business transaction i.e. against delivery of copper wires to him by complainant. He has further pleaded that all the cheques were CC no.125/08 Page 3/11 not filled up by him. There was another firm of complainant namely Veer Metals to which he used to supply articles and to receive consideration amount. The cheques in question were presented by complainant without delivering any article to him.
10. It was not denied by accused that legal notice Ex. CW1/10 was received by him. He took plea that a reply to the same i.e. Ex. DW1/D was sent to the complainant, thereby disputing the correctness of facts stated in Ex. CW1/10. In cross examination of accused, complainant also did not dispute receipt of reply from accused.
11. Thus, in this case there is no dispute that the cheques in question were issued by the accused. It is also not in dispute that these cheques were dishonored. It is also not in dispute that complainant had sent a legal notice after dishonor of these cheques to the accused, which was duly received by him. Only dispute revolves around the liability of accused towards the complainant against the cheques in question.
12. Complainant deposed that he had given a friendly loan to the accused. Such statement of complainant was challenged by the accused in his cross examination. In his cross examination complainant deposed that he had given this money to the accused after collecting the same from his wife and other family members. On being asked to produce record of bank accounts of CC no.125/08 Page 4/11 his wife and family members, he deposed that he could not bring the same. At the same time, he did not produce his wife or the other family members as witness in this case to substantiate his plea that such amount was given to him by these persons. Infact, he did not name any other family member, who had given such amount to him.
13. The cheques in question show that they were issued in favour of Veer Electroplaters. In paragraph 2 of legal notice Ex.CW1/10, which was sent by complainant to accused after dishonor of these cheques, it is mentioned that these cheques were issued by the accused in the name of firm of the complainant of which he expected to become proprietor. In his cross examination, complainant deposed that he was not owner of M/s. Veer Metals. He further deposed that his father was owner of Veer Metals. He further deposed that he was in the business of auto parts. Either in his affidavit or in his cross examination he has not talked about the firm namely M/s. Veer Electroplaters. In affidavit he has simply stated in para 3 that accused issued three cheques in the name of his firm M/s. Veer Electro Platers, of which he would be proprietor. I am unable to gather from such statement that whether this complainant had actually become proprietor of such firm namely M/s. Veer Electro Platers. He has used only future tense in his notice as CC no.125/08 Page 5/11 well as affidavit, which cannot show the picture of present time. Now the question is, if at the time of giving loan complainant was not proprietor of such firm, then what was the necessity to issue cheques in the name of this firm? Why couldn't cheques be issued in the name of complainant itself? Complainant has not stated any fact, which can afford answer to these questions. On the other hand, on bare perusal of cheques in question, I find that name of payee was not written in these cheques with same ink in which the cheque was otherwise signed and filled in respect of its amount. In all the three cheques name of payee is written with different inks. Further more, as per story of complainant all these cheques were given by accused to him on 27.03.2005. If these cheques were given on a single day, then in natural course of action, they should have been signed and filled by the accused with same ink. However, I also find that even the ink used by the accused are different in these cheques. Such scenario gives more credence to the story of the accused that they were given without filling the name of payee as advance in respect of business transaction between accused and complainant. In business transactions cheques are given at different time according to different transactions between the parties and therefore, there is more probability of filling the cheques with different ink on different dates, rather than issuing CC no.125/08 Page 6/11 these cheques with different inks at one particular time. If the cheques were given by the accused to the complainant on 27.03.2005, complainant must have witnessed the contents of these cheques at the same time when they were so delivered to him. As natural reaction, he would have raised query regarding filling these cheques with different inks and regarding filling the name of payee with different handwriting, which is so apparent from bare perusal of the cheques. However, story of complainant is totally silent in respect of such facts, so as to afford any answer to the question that why these cheques are not issued in one single flow, if they were issued at same time?
14. Accused has relied upon several case laws as mentioned above. In the case of Krishna Janardhan Bhat, Supreme Court held that rebuttal of presumption by accused as arising out of section 118 and 139 N.I. Act can be done with the help of presumption of law and facts and with possibility of non existence of presumed facts. In P. Venugopal Vs. Madan P. Sarathi 2009 (1) Civil Court Cases 054 (SC) in paragraph 16 of the judgment, referring to aforesaid case law, Supreme Court has held as under:
"Indisputedly, in view of the decisions of this Court in Krishna Janardhan Bhat (supras), the initial burden was on the complainant. The presumption CC no.125/08 Page 7/11 raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In a case of this nature, however, it is essentially a question of fact."
15. In the present case, I find that complainant has neither disclosed the source in proper manner from which the alleged amount was given to the accused nor has brought any evidence on the record to establish such source. In the second case referred by accused, Bombay High Court found this to be a relevant and important factor that what was the source for complainant to give the alleged loan to accused? Even Supreme Court has found this to be a relevant factor. It is onus of the complainant to satisfy that he had the capacity and such money in his hand so as to give such amount as loan to the accused. However, as observed herein above, complainant has failed to establish this fact.
16. In M/s. Kumar Exports Vs. M/s. Sharma Carpets2009 (1) R.CR.(Crl) 478, Hon'ble Supreme Court has explained in detail the scope of Section 118 and Section 139 N.I. Act. The relevant observations made therein are as follows: CC no.125/08 Page 8/11 "11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. CC no.125/08 Page 9/11 Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such 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 complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
17. Though in this case, accused and his father appeared in the witness box, however from cross examination of complainant itself, I find that it is sufficient to show probability of absence of consideration against the cheque in question. I say so on the basis of my aforesaid observations regarding failure of complainant to establish on the record his capacity and source of money in order to lend such amount to accused and regarding absence of any explanation to questions referred to by me respecting natural course of issuance of cheques and incompatibility of story projected by complainant with natural CC no.125/08 Page 10/11 course of action. Therefore, I do find that on one hand, accused has been able to raise probability of absence of consideration against cheques in question, while on the other hand, complainant has failed to prove consideration against cheques in question in order to establish the guilt of the accused beyond all reasonable doubts.
18. In view of my findings and observations given herein above, the complaint is dismissed and accused is acquitted of charge for the offence punishable u/s.138 Negotiable Instrument Act. Surety stands discharged.
19. File be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA) Court on 25/08/2010 CCJ/ARC(East)/MM
(Judgment contain 11 pages only) KARKARDOOMA COURTS, DELHI CC no.125/08 Page 11/11