Delhi District Court
(Refer :- "Rangappa vs . Sri Mohan" Slp (Crl.) 407/06, Dated:- ... on 25 October, 2012
IN THE COURT OF SHRI SATVIR SINGH LAMBA, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Smt. Jasbir Kaur,
W/o Shri Manjeet Singh,
D/o Shri Harbhajan Singh,
R/o Qr No.104, Double Storey,
Kabool Nagar,
Shahdara, Delhi. ......Complainant
Versus
Smt. Rabjit Kaur,
W/o Sardar Agyapal Singh,
R/o 98, Block No.13, Double Storey Quartar,
Kabool Nagar,
Shahdara, Delhi. ....... Accused.
JUDGMENT
Complainant Case No. : 1658/1 Date of institution : 08.10.2001 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Acquittal Date of Decision : 25.10.2012 CC No.1658/1 Page No.1/16 Brief Facts
1. Brief facts of the case are that the complainant was running a private committee in different groups and the accused is the member in the committee in different groups. It is alleged that the accused requested to the complainant that she is in the need of money for the business of her husband. Therefore, on the request of accused, the complainant had given her committee and accused has taken the money. It is further alleged that accused showed his inability to pay the monthly installment and due to this reason she issued the cheque in question bearing no.026768 dated 08.09.2001 drawn on Allahabad Bank, Chandni Chowk, Delhi for the sum of Rs.2,50,000/- (Rs.Two lacs fifty thousand only) which is Ex.CW1/1. Complainant presented the cheque in question Ex.CW1/1 in his bank for encashment through his banker but the same were got dishonored by the banker of accused unpaid with the remarks "Account closed" vide returning memo dated 08.09.2001 Ex.CW1/2.
2. Henceforth the complainant issued the mandatory notice U/s 138 NI Act dated 17.09.2001 which is mark C vide registered AD/UPC i.e. mark A, B and F.
3. When the accused failed to fulfill the conditions of the said legal notice i.e mark C within 15 days of its presumed service, then the complainant has filed the present complaint case U/s 138 of Negotiable Instrument Act 1881 (hereinafter the Act) against the accused.
CC No.1658/1 Page No.2/16Pre-Trial Procedure
4. After the institution of the present complaint, the complainant adduced his pre summoning evidence U/s 200 Cr.P.C. on which basis the accused was summoned via order dated 26.04.2003 to face trial for the offence U/s 138 NI Act. After the service of the summons, the accused entered his appearance whereupon the provisions of sec. 207 Cr. P.C. were also complied.
5. The accused was admitted to bail then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon her on 11.08.2003 after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty" and claimed trial.
Trial
6. In order to substantiate his case, the complainant examined himself as CW1 and Shri Tulsi Ram, Special Assistant, Allahabad Bank as CW2, whose contents are a mere repetition of what had already been discussed under the "Brief Facts" and hence are not repeated for the sake of brevity. CW1 was duly cross examined by the accused.
7. All the incriminating circumstances, appearing in the evidence against the accused was put in order to unable him to offer his explanation.
CC No.1658/1 Page No.3/168. In his explanation accused stated that she is innocent and present case is false. Accused stated that she had neither requested the complainant for the money nor issued the cheque in question as alleged by him. Moreover, accused also denied the receiving of the statutory legal notice sent by the complainant. Accused stated that her passbook and cheque book were missing for which the due intimation be given to the bank and account was closed on 05.07.2001. The NCR was also lodged in respect of missing aforesaid documents with the police on 20.08.2001. Accused states that she had invested Rs.1,54,704/- in two committees with the complainant and she is entitle to recover the same. Accused further stated that she and the complainant were living in the same building and residing face to face. Accused further states that the complainant used to threatened and intimidate her for which she had lodged a complaint on 28.06.2001.
9. In order to prove his defence, accused examined himself as DW8. The accused examined ASI Kusum Lata as DW1, Ct. Moti Lal as DW2, Ct. Jagbir Singh as DW3, Shri Amandeep Singh, S/o Shri Agyapal Singh as DW5, Shri Bhupender Singh, S/o Shri Trilochan SIngh as DW6 and Shri Agyapal Singh, S/o Shri Trilochan Singh as DW7 in support of his defence evidence. All the DW's were duly cross examined. Accordingly, DE was closed whereupon the trial came to a conclusion and the contesting parties were duly heard.
Facts in Issue CC No.1658/1 Page No.4/16
10. In order to have the positive outcome in his favour, the complainant was required to show that the cheque in question was given by the accused towards discharge of his liabilities which was dishonoured via returning memo whereafter the accused had also failed to comply with the requirements of the legal notice.
11. On the other hand, the accused was required to show his defence on the scale of preponderance of the probabilities that he is not liable to pay the amount involved in the present case to the complainant.
Legal Prepositions
12. The presumptions provided U/s 118 NI Act and 139 NI Act would come to the rescue of the complainant once the execution of the cheque in question is proved on record.
13. As per section 118 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was given against consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per Sec. 139 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability (Refer :- "Rangappa Vs. Sri Mohan" SLP (Crl.) 407/06, Dated:- 07.05.2010).
CC No.1658/1 Page No.5/1614. It is well settled that both the aforesaid presumptions U/s 118 & 139 NI Act are rebuttable in nature and the onus to rebut the same squarely rests upon the accused.
15. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record (inclusive of complainant's evidence and defence evidence, if any), that the complainant was a liar, that their was no existing liabilities between the parties and that the cheque in question was misused. It must be kept in mind that once evidence is brought on record from both sides, it becomes an evidence of the case and court can draw inferences from the said entire evidence either in favour or against any of the parties. Evidence is a complainant's evidence and accused's evidence only for the purposes of identifying it, but once it is adduced in the case, it becomes the evidence of the case and then the same has to be read as a whole. The court can not read the evidence of the complainant only to the extent it favours the complainant and overlook the remaining evidence which supports the accused merely on the ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the court can draw inferences either in favour of the complainant or against the accused. The accused has a right to argue his case even on the basis of the cross examination of the complainant & his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order to rebut the legal presumption in question, it CC No.1658/1 Page No.6/16 emerges that the accused need not require direct evidence to disprove the existence of consideration.
16. Preponderance of probabilities is the standard of proof upon the accused to rebut the above presumptions, which is not as high as that of the prosecution whereby the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
Appreciation of Evidence
17. Complainant stated as CW1 in her cross examination that she started business on 15.01.2000. The business of the chit fund is not registered. CW1 stated that there were five groups of chit series in the year 2000 for which monthly subscription is Rs.500, 1000, 1500, 2000 and 3000 respectively and there were 20 persons in each of the group. CW1 admitted that neither any receipt was issued by her in respect of the amount received from the members in the said chit series nor bahikhata was maintained. CW1 further stated that there were seven committees/membership of the accused and the accused had not deposited any payment towards the said chit series. CW1 admitted that she had CC No.1658/1 Page No.7/16 not served any notice on the accused persons for not paying the monthly subscription of the above said chit series. CW1 further admitted that on default of monthly installment membership comes to an end and the person whose membership has been canceled is left with no claim over the person operating the chit business. CW1 further admitted that at that time, her house and house of the accused were in front of each other in the same building. CW1 stated that family of the accused have five membership in the committee for the value of Rs. 10,000, 32,000/- 40,000/-, 55,000 and 60,000/-. Lastly, CW1 admitted that she has received approximately Rs.53,500/- from the accused in respect of the above said five committees. However all the suggestion put to him by the accused were denied by the CW1.
18. In the defence evidence accused examined DW1 police official who brought the photocopy of order dated 04.03.2005 passed by ACP/PG Cell of the office of DCP, North East, pertaining to the reading of the record of period 01.01.2001 to 31.12.2001. Same is Ex.DW1/A. DW2 brought the summoned record having the entries pertaining to the receipt of the complaint of the accused i.e Ex.DW2/A. DW3 brought the original of FIR of non cognizable offence no. 878/2001 dated 20.09.2001 i.e Ex.DW3/A. Above said DW's duly cross examined by the complainant.
19. DW5 Amandeep Singh is the son of accused and stated that their house was in front of the house of complainant. DW5 stated that in the year 2005 the postman had brought three letters. At that time, he was 11 years old. The postman asked that some adult person should receive both letters. The said CC No.1658/1 Page No.8/16 letter were not received by us. In the meanwhile complainant alongwith her brother namely Tony came and send me inside the house stating that she will talk with the postman. So, he do not know what transpired between the complainant and the postman. In his cross examination DW5 admitted that he was student of 5th standard at that point of time. DW5 further stated that there were four flats in the building of their residence and they were living at the top floor. DW5 do not remember the date and month of the visit of the postman. However all the suggestion put to him by the complainant were denied by the DW5.
20. DW6 stated in his chief examination that he contributed his money in six different chits group being run by the complainant and had given the monthly installments for the same. DW6 further stated that complainant never invited him at the time of auction of chit so he requested the complainant to return his money. But the complainant refused, due to which some quarrel took place with the complainant for the refund of the money. In his cross examination DW6 stated that complainant had not issued any receipt for the amount received by her for the installments of the chit groups. DW6 do not remember the date and month of the said chits as well as incident of quarrel with the complainant. However all the suggestion put to him by the complainant were denied by the DW6.
21. DW7 is the husband of the accused and stated in his chief examination that in the year 2000 the complainant was operating chit business and he himself subscribed for the five chits for which seven installments were also paid to the complainant. DW7 further stated that complainant never invited CC No.1658/1 Page No.9/16 him at the time of auction of chit so he requested the complainant to return his money. But the complainant refused, due to which the complainant started quarrellings with the accused by entering in his house for which a police complaint was also lodged in respect of the same i.e marked as Mark A. The report related to the lost of the cheque book is mark B. DW7 stated that he alongwith his wife went to the police station and the report was recorded by the police official in his presence. In his cross examination DW7 stated that he is having a shop of batteries and his business timings are from 10:30/11.00 AM to 07:30 PM (approx). DW7 admitted that he and his wife were maintaining bank accounts separately in different bank. DW7 denies the signatures on the cheque in question. DW7 admitted the signature of the accused at point A on Ex.DW7/C1. However all the suggestion put to him by the complainant were denied by the DW7.
22. Accused examined herself as DW8 and stated that there is no legal liability towards the complainant as alleged by her. DW8 stated that the residence of the complainant is in front of her house. DW 8 further states that the complainant was on visiting terms at her house. The complainant used to organized committee whereby she used to collect monthly installments of contribution of the chit amount from the subscribers. Complainant also induced her to became a member in the said chit committee for which she paid amount of Rs.53,500/- to the complainant. The subscription of the chit committee was on the understanding that the subscriber will continue to remain member of the chit committee only on the deposition of monthly installments and in case of default the membership will be closed. Accused further stated that it was also agreed CC No.1658/1 Page No.10/16 that the amount received by the organizer shall be forfeited in case of default and after the default, there is no legal obligation to pay the installments. DW8 further stated that when she demanded her due amount of Rs.53,500/- from the complainant but instead of returning the same the complainant raised quarrel and also threatened her to implicate in false cases. Ex.DW8/A and Ex.DW8/B are the police reports lodged by the DW8 against the complainant. Ex.DW8/C is the envelope of registered letter sent to the complainant as a legal notice. The carbon copy of said legal notice is Ex.DW8/D.
23. In her cross examination DW8 admitted that one of the complaint lodged by her was on 26.06.2001 and other was lodged on 15.07.2001, but she do not remember the name of the person/officer who signed Ex.DW8/A and Ex.DW8/B in her presence. DW8 further explained that she demanded the due amount of Rs.53,500/- from the complainant in the month of June 2001 but had not filed any recovery suit or legal action on account of quarrel against the complainant. However all the suggestion put to him by the complainant were denied by the DW8.
24. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheque in question was issued by the accused which was dishonoured vide memo and despite the legal notice accused did not make the payment. It is argued that the accused has not led any cogent evidence in support of his defence version, hence, the complainant has been able to prove his case. It is further argued that accused has failed to discharge the burden upon him to rebutt the presumption in favour of the CC No.1658/1 Page No.11/16 complainant under the Act.
25. Ld. Counsel for accused has argued that accused was having no legal liability towards the complainant. He further argued that neither she has issued the cheque in question nor the cheque in question was signed by the accused. Instead the pass book and cheque book of the accused was missing for which due intimation was given to the bank and also closed the account due to apprehension of misuse of the missing cheque. It is further argued that the police complaint was also lodged in respect of the missing of the pass book and cheque book of the accused. Ld. Counsel for accused further argued that present case is the misuse of the cheque in question by the complainant to harass the accused with malafide intention.
26. Now the question is whether the complainant proved his case, that whether the amount was legally enforceable debt. Offence under Section 138 of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, her statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of cogent evidence.
27. 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/evidence on preponderance of probabilities to prove that CC No.1658/1 Page No.12/16 cheque in question was not supported by consideration and that there was no debt or liability to be discharged by her. However, there is no need that the accused should disprove the non existence 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.
28. From the material on record it is established that the complainant and the accused were well known to each other as they were living in the same building having their entrances face to face. It is also proved on record that the complainant is running the business of chit fund committees and the accused was also member of her committees. The complainant lays the foundation of her case on the ground that the accused demanded financial help on the pretext of the business needs of her husband for which money was given to her by way of giving of the chit committees. It is also the fact of the case that the complainant has filed three different complaint cases for the dishonored of cheque against the accused in the present case. The complainant had not illustrated any detail of the specific amount of the alleged need of the accused for the financial assistance nor disclosed the quantum of the amount of the financial help given to the accused. Moreover, even after the entire deposition in the present case, complainant failed to brought on record the fact about the exact amount allegedly demanded by the accused as financial assistance from the complainant as well as the exact amount allegedly given to the accused as a loan by the complainant.
CC No.1658/1 Page No.13/16Further the deposition in the present case proves that complainant has not furnished on record any rules regulation regarding running of chit business. The record of the names of the members of chit committees is also not furnished. Complainant also not disclosed the details of the auctions of the allegedly chit committees. In his cross examination complainant also admitted that she do not used to maintain the record/behikhata as well as the parentage and addresses of the members of the chit committees. Complainant also admitted that no receipt were used to be issued by her in respect of the amount received from the members for the chit business. Moreover, it is also admitted by the complainant that no documents related to this case were lost by her meaning thereby that the complainant is in possession of the all the documents related to the present case but same were not furnished on record deliberately. At one time the complainant stated in her cross examination that accused had not paid single penny towards the subscribed chit committees however, at the same time she admitted the receiving of a sum of Rs.53,500/- from the accused.
29. The signatures on the cheque in question are disputed by the accused. The presumptions under the provision of NI Act arise only when the issuance of cheque as well as the signatures on the cheques are admitted. However, in the present case the complainant failed to prove on record that the cheque in question was issued to him duly signed by the accused in order to discharge the alleged loan liability. Complainant also failed to prove on record that she had given the loan to the accused as alleged in present case. The testimonies of the police officials i.e DW1, DW2 and DW3 also supports the defence taken by the accused and confirms the factum of the police complaint CC No.1658/1 Page No.14/16 made by the accused. The testimonies of DW5 raised highly suspicious doubts on the factum of service of the statutory legal notice on the accused as DW5 was alone at the time of visit of post official and was 11 years old only and the post official was dealt with by the complainant and her brother only being neighbor of the accused as the complainant and accused were residing in the same building in front of each other.
30. It is well settled law that in a criminal case, prosecution has to stand upon its own legs and it cannot take the advantage of the fact that accused has not led cogent defence evidence or accused is having a weak defence. The defence raised by the accused along with the evidence placed on record are cogent proof in support of the defence version which established that the cheque in question was not issued by the accused towards the discharge of liability as alleged by the complainant and at the same time it weakens the foundation fabrics of the present complaint case. The suspicious circumstances rising in the present case will certainly give advantage to the accused. Hence, in the present case, the accused raises a cogent suspicious circumstances in the version of the complainant which belies the foundation of the present complaint case and same is sufficient to rebutt the presumption that the cheque in question was not for discharging the legal liability.
CC No.1658/1 Page No.15/16Conclusion
31. Once the accused has discharged his initial burden of proving its defence the onus rebutted back on the complainant. However in the present case, complainant has miserably failed to prove the case beyond reasonable doubt.
32. Therefore, from the above discussions, this court is of considered view that in the circumstances appearing from the record of the case, the accused deserves acquittal and hereby stands acquitted of the offence under Section 138 of Negotiable Instrument Act.
Announced in open court on SATVIR SINGH LAMBA
25.10.2012 MM-01(NI ACT)WEST/DELHI
CC No.1658/1 Page No.16/16