Delhi District Court
Ranbir Singh vs . Anuj Minocha Cc No.5003785/2016 Page ... on 13 January, 2020
IN THE COURT OF MR. PRANAT KUMAR JOSHI, METROPOLITAN
MAGISTRATE, SOUTHWEST, DWARKA, NEW DELHI
In Re:
CNR No. DLSW020106472016
CC No. 5003785/2016
Sh. Ranbir Singh
S/o Sh. Gajraj Singh
R/o C504, Ground Floor, Vikaspuri,
New Delhi 59 ............ Complainant
Versus
Anuj Minocha
S/o Sh. Lakshman Minocha
R/o B2A/59, B 2ABlock Janakpuri
New Delhi ............. Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of registration of case : 02.09.2016
(4) Date of conclusion of arguments : 13.12.2019
(5) Date of Final Order : 13.01.2020
(6) Final Order : Acquitted
Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 1 of 28
JUDGEMENT
1. Vide this judgement I shall dispose off the present complaint case filed under section 138, Negotiable Instrument Act, 1881 (hereinafter referred to as 'the Act').
2. Dehors unnecessary details, the factual matrix of the prosecution case is as follows: 2.1. The accused approached the complainant and requested him to give a friendly loan of ₹2,00,000/ (Two Lac) on 10.01.2015 for twelve months. The complainant had withdrawn this amount from his saving A/c No. 3615 South Indian Bank A1/177, Janakpuri Branch, New Delhi 110058 for the accused. This account is in the name of Ranbir Singh & Sons HUF.
2.2. The accused, at the time of advancement of loan issued two postdated cheques bearing numbers - 101503 and 101504 both dated 01.08.2016 against said loan of ₹ 2 lac both drawn on Dena Bank, Mayapuri.
2.3. The complainant presented the aforementioned cheques before his banker for encashment but all the aforementioned cheques were returned unpaid with the reason 'Account Blocked' vide cheque returning memos dated 02.08.2016.
2.4. Thereafter the complainant issued a legal notice dated 13.08.2016 to the accused, under section 138 of the act. The legal notice was duly served upon the accused. The accused had failed to make the payment of cheque amount within 15 Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 2 of 28 days of receipt of the same. Thus, the present complaint case.
3. The present complaint case was registered on 02.09.2016 and the pre summoning evidence was led by the complainant on the same day. After considering the presummoning evidence by affidavit and the documents placed on record by the complainant, the court was pleased to summon the accused vide its order passed on the same day.
4. The accused entered the appearance on 24.12.2016. Notice U/s 251 of the Code Of Criminal Procedure (hereinafter referred to as the Code) was framed against the accused on 22.04.2017, to which the accused pleaded not guilty and claimed trial. Plea of defence of the accused was recorded simultaneously wherein the accused admitted his signatures on the impugned cheque but stated that he had not given the subject cheque to the complainant. The accused had stated that he had given the subject cheque to his friend namely Kush. The accused admitted that he had received the legal notice. The accused denied his liability towards the complainant.
5. The accused seeks exoneration on these grounds.
6. Thereafter, an application U/s 145(2) of the Act was moved by the accused on 23.02.2017 and the same was allowed vide order passed on the same day whereafter the matter was fixed for crossexamination of the complainant.
7. On 22.06.2017 the complainant adopted the contents of his PSE by way of affidavit which is Ex. CW1/A as his examinationinchief and also relied upon the Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 3 of 28 documents Ex. CW1/1 to Ex. CW1/9 (colly 5 pages). The complainant was cross examined and discharged.
8. The statement of the accused under Section 313 of the Code was recorded on 15.09.2017, in which all the incriminating evidence along with all the exhibited documents were put to the accused. In his statement the accused stated inter alia that he had not taken any loan from the complainant nor does he know the complainant. The accused further stated that the cheque in question was given by him to his friend Kush Thukral which was given to him as security. It was further stated by the accused that he does not know how the cheque in question reached in the hands of the complainant. He denied having any legal debt towards the complainant.
9. The matter was thereafter fixed for DE.
10. The accused was examined, cross examined and discharged on 07.05.2018. However at the request of Ld. Counsel for the accused the DW was closed and the matter was fixed for final arguments vide order dated 20.08.2018.
11. Written final arguments were submitted from both the parties on 28.11.2018 and the matter was thereafter fixed for judgment on 30.11.2018 and thereafter for 15.12.2018. Thereafter, the court while exercising power under Section 311 of the Code ordered the complainant to furnish his bank account statement vide order dated 19.01.2019. Thereafter the document was produced and the complainant was again crossexamined and discharged on 01.02.2019.
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12. Thereafter the accused informed the court that he had traced his other witness and he was permitted to examine his witness vide order dated 02.02.2019. The witness Kush Thukral was examined, crossexamined and discharged on 30.10.2019 and the DE was closed vide separate statement of the accused.
13. Final arguments were already placed on record by both the parties and none of the party presented any additional arguments. Thereafter the matter was fixed for judgment on 13.01.2020.
13. Witnesses examined by the Complainant 13.1 The complainant himself as CW1 and no one else.
14. Documentary evidence relied upon by the Complainant 14.1. PreSummoning evidence by affidavit which is Ex. CW1/1; 14.2. Original Cheques which are Ex. CW1/1 and Ex. CW1/3; 14.3. Retuning Memos which are Ex. CW1/2 and Ex. CW1/4;
14.4. Legal Notice which is Ex. CW1/5;
14.5. Postal Receipts which is Ex. CW1/6;
14.6. Tracking report which is Ex. CW1/7;
14.7. Complaint which is Ex. CW1/8;
14.8. Copy of ITR, balance sheet and profit and loss account which is Ex. CW1/9 (coly 5 pages).
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15. Witnesses examined by the Accused 15.1. The accused got himself examined as DW1 and one Kush Thukral as DW2 and no one else.
16. This in a nutshell is the factual expose´.
17. Before adverting to scanning the evidence under the lens of the law pertaining to the lis at hand, let us revisit the legal benchmark to be satisfied, enunciated in Section 138 of the Act : 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 Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 6 of 28 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.
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18. Thus, the essential ingredients that can be culled out from the statutory provision are:
(i) 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 30 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 Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 8 of 28 to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
19. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied, the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
20. I would now appreciate the facts in the light of the law mentioned above:
(i) 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;
As far as the first ingredient of Section 138 of the Act is concerned, it is nowhere disputed that the accused had drawn the cheque on the account maintained by her. So, the first ingredient stands satisfied in the light of admissions of the accused by necessary implications.
21. (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
Let us now examine the evidence placed on record by both the parties in order to satisfy the second ingredient of the offence.
In order to correctly appreciate this ingredient in the light of the evidence placed on Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 9 of 28 record by both the parties, it is necessary to revisit the provision under Section 118 and Section 139 of the Act.
Section 118 of the Act inter alia provides: 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, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;
Section 139 of the Act provides: "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"
22. It is clear from the conjoint reading of the both the provisions that ordinarily in the Cheque dishonouring cases, what the courts ought to consider is whether the Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 10 of 28 ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
23. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation.
24. As far as standard of proof required to rebut the presumption raised under Ss.118 and 139 of the Act is concerned, it has been laid down in the number of judgments rendered by the Hon'ble Supreme Court of India that a defence of non existence of liability or the cheque being given as a security, cannot be taken at the mere ipse dixit of the accused. The accused has to prove his innocence either by adducing his own evidence or by punching holes in the case of the complainant.
25. It was held by Hon'ble Supreme Court in the case titled as Rangappa v. Sri Mohan (2010) 11 SCC 441 that: "26. In the light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 11 of 28 way cast doubt on the correctness of the decision in that case since it is based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttal 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. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 12 of 28 to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
26. Coming back to the facts in the present case, the complainant had reproduced the contents of his complaint in his evidence by way of affidavit which he adopted as his examination in chief.
27. The complainant was crossexamined extensively on behalf of the accused.
28. Now as far as the legally enforceable liability of the accused towards the complainant is concerned, it has been inter alia argued by the Ld. Counsel for the complainant that a loan of ₹2,00,000/ on 10.01.2015 was taken by the accused from the complainant. It has been further argued that the complainant examined himself and proved his case beyond any doubt even though the counsel for the accused cross examined the complainant at length. It has been further argued that accused had admitted in statement of accused U/s 315 Cr.PC that he had received the legal demand notice, however he told that the notice was not received directly by him but was received by his mother. So it means that the legal notice received to the accused but he neither made the payment to the complainant nor sent a reply to Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 13 of 28 the notice. It has been further argued that in notice U/s 251 Cr.PC dated 24.12.2016 accused admitted this fact that he has received the legal notice however later on accused changed his version despite that his correct address is the same on which the legal notice dated 13.08.2016 was sent by the complainant. Meaning thereby the accused is also misleading the Court to make false and contradictory statement before the Court. It has been further argued that as per "CC Alvi Haji" law is very much clear once the notice sent on correct address it means that it was received by the accused. It is has been further argued that accused has failed to rebut the presumption in his favour and took false plea before the Court. It has been further argued that accused has failed to furnish any evidence regarding misuse of cheque against the complainant or any other person till today, even he has failed to give reply to the legal notice despite service of the same. It has been further argued that the accused changed his statements now and then.
29. Per contra it has been argued on behalf of the accused that the complainant has alleged in his case that that accused approached to him on 10.01.2015 for loan, while in his cross examination he stated that the accused was talking to him from 01.01.2015 for loan. It is further argued that the complainant has failed to explain as to why he accepted cheques for 20 months while the loan was given for 12 months only. This fact created doubt over the complainant as well as upon his integrity and establishes that the case is false one. It is further argued that the complainant has alleged that he gave Rs. 2 lac to the accused by withdrawing the same from his saving account which belongs to HUF of which he is Karta but he had not filed any document of the alleged withdrawal and the said fact was admitted by him in his cross examination. It is further argued that the complainant in his Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 14 of 28 cross examination had stated that the accused had given the cheques in question dated 01.08.2016 for the reason that he had told him that he would make the payment of loan amount before 01.08.2016 and he would take back the cheques in question, thus, it was clearly admitted by the complainant that the cheques were issued for security purposes only and not for discharge of any liability. It is further argued that the legal notice was also silent about the fact that the said cheques were ever issued by the accused in discharge of any liability. It is further argued that the complainant had stated that at the time of advancing the loan to the accused his family members viz his son, daughter in law and brother in law of his son namely Vipin Suryavanshi, were present but he had not examined any of those witnesses to prove his case, which leads to the only conclusion that no such amount have ever been advanced by the complainant to the accused. It is further argued that the the complainant stated in his cross examination that neither he nor the accused has ever visited each other house and the accused was only known to his son in law and no prudent man could believe that anybody would lend such a huge amount to stranger and this fact has made the story of the complainant doubtful.
30. I have heard the Ld. Counsels of both the parties and given my thoughtful consideration to them.
31. In the present case, the accused has only one defence. The defence of the accused is that he had given the subject cheque to one Kush Thukral from whom he had taken a sum of ₹2 lac and which he had returned. I shall be dealing with this defence in the subsequent paragraphs of the judgment.
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32. As far as taking of loan from the complainant is concerned, it has been the constant defence of the accused, right from the stage of the notice under Section 251 of the Code, that the cheque was given by him to his friend Kush Thukral. In the crossexamination of CW1 it has been specifically asked on behalf of the accused as to whether the complainant knows any person by the name of Kush Thukral. It has been categorically denied by the complainant that he does not know any Kush Thukral. In order to bolster his case, the accused got Kush Thukral examined in his defence as DW2. The said DW2 stated in his examinationinchief that he is a common friend of the complainant and the accused. Interestingly, not a single specific question or a specific suggestion was given on behalf of the complainant regarding the acquaintance of the accused and complainant and regarding the acquaintance of DW2 with the complainant. Thus, in the light of no suggestion to the contrary, I am convinced that the complainant had an acquaintance with DW2.
33. As far as the advancement of loan of ₹2 lac by the complainant to the accused is concerned, it has been stated by the complainant in his examination in chief that the accused had approached him for a friendly loan of ₹2 lac on 10.01.2015 for a period of 12 months. The complainant has neither stated in his complaint, or in his chief as to when was the loan in question advanced to the accused. Even if this omission is to be ignored for a moment, what is striking is that the complainant had stated in his crossexamination dated 22.06.2017 that accused had been talking to him since 01.01.2015 and the accused had come to his house only at the time of taking payment on 10.01.2015. At this juncture, however, it Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 16 of 28 behoves me to examine the conduct of the complainant from the perspective of a reasonably prudent person. It has been deposed by the complainant that the accused is the friend of the saala (Nitin Suryavanshi) of his son Deepak Rajput. It was further deposed by him that none of them had ever visited the houses of each other but for the day when accused had come to the house of complainant for taking the loan amount. In the crossexamination of DW1 dated 07.05.2018 it was specifically suggested on behalf of the complainant that the accused came into contact with the complainant through the saala (Nitin Suryavanshi) of complainant's son Deepak Rajput. This suggestion was categorically denied by the accused. Any reasonable person would have, first of all, got both Deepak Rajput and Nitin Suryavanshi examined as witnesses to show not only that they knew the accused and the accused knew the complainant but also to show that the loan in question was given to the accused by the complainant in thier presence, as has been alleged by the complainant. The complainant thought it wise to not examined them only to his peril. Further, it is the case of the complainant that he knew the accused through a remote and distant channel and they had never visited each other residences. Yet the complainant alleged that he had advanced a friendly loan of ₹ 2 lac to the accused for 12 months simply on the basis of the subject cheque without getting any document executed evidencing the factum of loan. This conduct of the complainant which has been highlighted by the accused is undoubtedly questionable and fails the test of reasonableness. Unfortunately for the complainant, he had not offered any explanation for such an unusual conduct. At this juncture, it is profitable to revisit the judgment of Vijayee Singh v. State of U.P., (1990) 3 SCC 190, wherein the Hon'ble Supreme Court explained the principle of Section 3 of Indian Evidence Act, 1872 and the test of reasonably Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 17 of 28 prudent person, as under:
"28. ...Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by a prudent man."
(Emphasis supplied) Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 18 of 28
34. The above judgment clearly shows that if in view of a prudent person a fact is neither proved nor disproved, it is said to be not proved. In the present case also, the accused has succeeded in presenting a constellation of circumstances where it becomes difficult to believe that any reasonably prudent person would advance money to a barely acquainted person without executing any concrete document. Moreover, having even done so no prudent person would be complacent enough to not examine witnesses to the transaction in question. These circumstances only go on to discredit the case of the complainant. After all, in a cheque dishonour case all that the accused is expected to do is bring to the fore the preponderance of probabilities. It means that the accused has to show that there can be more possibilities than one alleged by the complainant. Once that is done, it becomes the responsibility of the complainant to prove his case beyond reasonable doubt. In the present case, the possession of the cheque with the complainant was explained by DW2 who appeared on behalf of the accused. The complainant could have led evidence by presenting his son and his son's saala as witnesses in order to prove his averments but he failed to do so. In such a scenario, it can be concluded that the accused has been able to rebut the initial presumption raised against him. These omissions on the part of complainant makes his case selfdestructive.
35. In a criminal trial under Section 138 of the Act, it is necessary that the execution of the cheque against the legal liability should be proved by presenting the evidence which is irrevocable, unblemished and of impeccable character. Mere production of the cheque cannot make the case of the complainant sacrosanct and Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 19 of 28 impregnable. All it does is raises a rebuttable presumption in the favour of the complainant but it does not absolve him from his duty to present an unassailable, trustworthy and cogent case. Unfortunately, in the present case the complainant has ended up destroying his own credibility by his own omissions and unreasonable conduct highlighted by the accused. The only impression it creates is that the same was a wilful and a deliberate omission done with the intention of shielding the truth from being revealed.
36. As far as the document Mark A which is a copy of account statement of the bank account of the complainant submitted by him on 01.02.2019 is concerned, the same is admitted to be uncertified. Further, the complainant also did not deem it fit to prove the document Mark A by calling upon the bank witness to testify in his behalf or by presenting the original bank passbook or by any other mode prescribed in the Bankers Book Evidence Act. Proving the document Mark A was all the more necessitated after a specific suggestion was given on behalf of the accused that the document Mark A has been forged by the complainant. Hence there is no proof to show that the complainant had ever withdrawn any amount of money for the purpose of loan. However, it was affirmed in the chief of DW2 that he took money from the complainant to be given to the accused in lieu of the subject cheque but the complainant denies his acquaintance with DW2 entirely even though the facts suggest otherwise. This shows that the complainant has been concealing certain facts and this is to his own detriment. Overall the case build up by the complainant is premised on a very weak edifice which has crumbled by its own weight.
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37. Although the complainant has himself discredited his own case, yet for the sake of more clarity let us examine the defence of the accused in his deposition as DW1 and the deposition of DW2 before the court. It has been the constant defence of the accused throughout the trial, right from its inception that an amount of ₹ 2 lac was taken by the accused from one Kush Thukral and the same has been returned to him. This line of defence has been supported by DW2 when he stated that he helped the accused in getting the loan of ₹ 2 lac from the complainant and he had returned the said amount of loan to the complainant when he got the same back from the accused. The defence regarding the possession of the subject cheque with the complainant has also been satisfactorily explained by DW2 when he stated that he took the subject cheque from the accused and gave the same to the complainant for the purpose of security. The fact that the subject cheque was initially given as a security has been admitted by the complainant in his chief when he stated that the subject cheque was dated 01.08.2016 as the accused had promised that he would make the payment of loan amount to the complainant before that. However, even if this is ignored in the light of the settled law that security cheques can be presumed to have been issued in discharge of the legal debt if the debt is not otherwise paid, in the present case there is a high probability that the debt to the complainant has been repaid on behalf of the accused by DW2, Kush Thukral. Hence the benefit of doubt must go to the accused.
38. It is a settled position of law that the case of the complainant should stand on its own leg. It cannot take advantage of the weakness of the defence, nor can the court, make out a new case for the prosecution and convict the accused on that basis. If defence version is incorrect, it does not mean that the prosecution version Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 21 of 28 is necessarily correct.
39. The Hon'ble Apex Court in the epic judgment passed in the case titled as Sharad Bhirdichand Sarda v. State Of Maharashtra (1984) 4 SCC 116, while discussing the principles of appreciation of prosecution and defence evidence, has held that--
151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
40. At this juncture, it is profitable to also refer to a case law on the point under discussion. The Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 held that: "20. The accused in a trial under Section 138 of the Act has two Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 22 of 28 options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence 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. 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 Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 23 of 28 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.
21. The accused has also an option to prove the nonexistence 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, therefore, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
41. Both the paras of the aforesaid judgment make it absolutely clear that the accused in a cheque dishonour case need not even step into the witness box and he may rely upon the material produced by the complainant in order to show a preponderance of probabilities in his favour which would suffice to shift the burden onto the complainant. Moreover, what has been held in above judgment is that once the burden has been shifted by the accused to the complainant, the Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 24 of 28 initial presumption under Section 119 and Section 139 of the Act will not come to the aid of the complainant. Furthermore, it is a cardinal canon of criminal jurisprudence that the primary burden of proving the case rests upon the complainant and that the case of the complainant should stand on its own legs.
42. In the present complaint, the case brought forth by the complainant is in itself doubtful for the reasons stated above. The complainant has failed to prove his case beyond reasonable doubts once the accused had rebutted the initial presumption. The case of the complainant seen in the light of statements made by him is marred by reasonable doubts created by the accused from the testimony of the complainant and by highlighting the material omissions made by the complainant which were vital to his case.
43. In the light of above discussion and case laws discussed supra, I have no doubt in holding that the complainant has utterly failed to prove that there was an existing legally enforceable liability of Rs. 2,00,000/ upon the accused towards the complainant.
44. In sum and substance, the accused has been able to successfully punch holes in the case of the complainant. Moreover, it is clear from the lucid judgment rendered by the Hon'ble Supreme Court, in Bharat Barrel & Drum mfg. Co. v. Amin Chand Pyarelal (1999) 3 SCC 35: "We are of the view that where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 25 of 28 was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S.118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words 'until the contrary is proved' in S.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the court to consider the nonexistence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist (emphasis supplied). 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. Thereafter, the presumption under S.118 does not again come to the plaintiff's Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 26 of 28 rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance"
(emphasis supplied).
45. In present matter, the accused has been able to raise a reasonable and probable defence from the case of the complainant coupled with the consistent line of defence taken by him and has been able to rebut the presumptions under sections 118 and 139 of the Act. The complainant has clearly not come before the court with clean hands. Resultantly, the reverse onus cast upon the accused has been discharged satisfactorily.
46. Now, as far as the fate of the present case is concerned, the law declared by the Hon'ble Supreme Court, comes to our aid. It has been categorically held in Indus Airways Private Limited And Others v. Magnum Aviation Private Limited And Another (2014) 12 SCC 539 that
9. The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 27 of 28 bringing an offence under Section 138 (emphasis supplied). If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability.
47. Likewise, in the present case the benefit of doubt must go to the accused and I hold that the complainant has miserably failed to prove the existence of any legal liability on the accused towards him. Hence there is no need to look into the other aspects of the offence when one crucial ingredients could not be proved by the complainant. Consequently, this court finds the accused Anuj Minocha not guilty for the offence under Section 138, Negotiable Instruments Act, 1881 and acquits her accordingly.
48. This judgment contains 28 pages. Every page of this judgment has been signed by me.
49. This judgment be uploaded on the website of Dwarka District Court forthwith.
Digitally signed by PRANAT PRANAT KUMAR
KUMAR JOSHI
Date: 2020.01.13
JOSHI 16:28:21 +0530
ANNOUNCED IN THE OPEN COURT (PRANAT KUMAR JOSHI)
TODAY i.e. 13th JANUARY 2020 METROPOLITAN MAGISTRATE DWARKA DISTRICT COURTS/ DELHI Ranbir Singh Vs. Anuj Minocha CC No.5003785/2016 Page no. 28 of 28