Delhi District Court
In Re vs Kuldeep Kumar on 20 August, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Appeal No. 01/14
In re:
Dharam Pal
S/o Sh. Ghasi Ram,
R/o RZ-11, Krishna Bhawan,
Gali No. 2, Behind Yadav Bhawan,
Phase-II, Gopal Nagar, Najafgarh,
New Delhi - 110 043.
............... Appellant
Versus
Kuldeep Kumar,
S/o Sh. Maha Singh,
R/o VPO Chhawla,
New Delhi - 110 073.
............... Respondent
Date of Institution of Case : 14-03-2014
Date on which Judgment was reserved : 07-08-2014
Date on which Judgment was delivered : 20-08-2014
JUDGMENT
1. This judgment shall decide the criminal appeal filed by the appellant Dharam Pal (accused before the Ld. Trial Court) against judgment dated 05-02-2014 and order on sentence dated 13-02-2014 passed by the Court of Sh. Sudhir Kumar Sirohi, Ld. M.M., Dwarka Courts, New Delhi, vide which the appellant was convicted u/s 138 Crl. App. No. 01/14 20-08-2014 1 of 28 Negotiable Instruments Act, 1881 ( hereinafter referred to as NI Act ) and sentenced to pay fine of Rs. 1,40,000/- and to undergo simple imprisonment for six months and in default of payment of fine to undergo simple imprisonment for three months, the whole amount of fine to be paid as compensation to the complainant.
2. The facts leading to filing of this appeal are that the respondent (complainant before the Ld. Trial Court) filed a complaint alleging that he contacted the accused to sell his agricultural land to which the accused agreed. In February, 2010, accused sold his agricultural land for a sum of Rs. 16,50,000/-, out of which he paid Rs. 13,50,000/- in cash and issued one cheque No. 465170 dated 20-02-2010 for Rs. 1,00,000/- drawn on Bank of Maharashtra, Najafgarh Branch in discharge of his liability towards the complainant. On 30-03-2013, the complainant presented the said cheque in his bank i.e. Punjab & Sind Bank, Najafgarh Branch but the same was returned unpaid with reasons " funds insufficient" , vide return memo dated 03-04-2010. He sent legal notice dated 17-04-2010, through his counsel, vide speed post bearing No. ED 920070535 and through courier bearing No. 112948812 dated 23-04-2010. Despite service of the said notice, demanding payment of the cheque amount, accused did not make payment of the same within the prescribed period of 15 days from the date of receipt of notice.
Crl. App. No. 01/14 20-08-2014 2 of 28
3. After recording pre-summoning evidence, the accused was summoned. A notice u/s 251 Cr.P.C. was given to the accused to which he pleaded not guilty. An application u/s 145 (2) of the N.I. Act filed by the accused was allowed. Complainant deposed as CW 1. Statement of accused u/s 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded. Accused testified u/s 315 Cr.P.C. as DW 1. He also examined Mr. Rakesh Kumar and Sh. Naveen Kumar as DW 2 and DW 3 respectively. Vide judgment dated 05-02-2014, the accused was convicted for offence u/s 138 N.I. Act and vide order on sentence dated 13-02-2014, he was sentenced as above.
4. The Ld. Trial Court has based its judgment dated 05-02-2014, inter-alia, on the ground that there is contradiction in defence of the accused with respect to amount, as during his statement u/s 313 Cr.P.C., he stated that he had paid entire amount of Rs. 16,50,000/- to the complainant but as DW 1, he stated that he had bought a plot in Bikaner from Sh. Kuldeep, Sh. Ram Niwas and Sh. Surender for a sum of Rs. 13,74,000/-. In the receipt, Mark A, the amount mentioned is Rs. 13,75,000/- and not Rs. 13,74,000/-. Ex.DW1/2 was not put to the complainant. Mr. Ram Niwas and Surender have not been examined by accused to prove Ex. DW1/3 and Ex. DW1/4 and that in his statement u/s 313 Cr.P.C., accused categorically admitted that he had received notice and not paid because he had paid all the amount.
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5. The impugned judgment has been assailed, inter-alia, on the ground that the Ld. trial court has not appreciated that accused had successfully led evidence in defence to prove that the alleged transaction was for Rs. 13,74,000/- and not Rs. 16,50,000/-, in view of the 'Mukhtiarnama', Ex.DW1/2 to Ex.DW1/4, all dated 15-11-2009, wherein it is clearly stated that all the three sellers namely the complainant Sh Kuldeep Kumar, Sh Ram Niwas and Sh Surender had agreed to sell their equal share in the property for Rs. 4,58,000/- each, out of which they had taken Rs. 2,00,000/- each and the remaining amount of Rs. 2,58,000/- each was to be paid at the time of execution of the sale deed. The accused had thereafter made the entire payment on 14-01-2010 on execution of the receipt, Mark A. Thereafter G.P.A. was executed in the name of Sh. Naveen Kumar i.e. son of the accused. The security cheque handed over to the respondent at the time of 'Mukhtiarnama' was not returned by the complainant on one pretext or the other. The complainant had not produced any document to show that the transaction was for a sum of Rs. 16, 50,000/-. Ld. M.M. has ignored the receipt Mark A, G.P.A., Mark B and the cheque, Ex. DW1/5 and the depositions of the defence witnesses. The depositions of DW 2 and DW 3 have not been discussed. It is further urged that the statements u/s 281 Cr.P.C. and 313 Cr.P.C. are without oath and cannot be read as evidence. For rebuttal of presumption u/s 139 of the NI Act, accused can rely on the broad improbabilities in the case of the Crl. App. No. 01/14 20-08-2014 4 of 28 prosecution and he need not disprove the prosecution evidence beyond a reasonable doubt. The cheque in question was in the nature of a security cheque which was blank and undated and was previously taken by the complainant at the time of execution of agreement.
6. Sh. P.D.P. Deo and Sh. Neeraj Jha, Ld. counsels for the appellant have argued that the documents proved by the accused i.e. three receipts dated 15-11-2009, Ex. DW1/2 to Ex. DW1/4, photocopy of receipt dated 14-01-2010, Mark A and photocopy of G.P.A. dated 18-01-2010, Mark B show that the sale consideration was Rs. 13,74,000/- and not Rs. 16,50,000/-. Further, in his statement u/s 313 Cr.P.C., in response to question No. 1, the accused merely stated that he has paid the entire amount. However, since the figure " 16,50,000/-"
was mentioned in the question, the words and figure, "of Rs. 16,50,000/-" were inadvertently added to his answer. The accused had consistently maintained that the sale consideration was Rs. 3,74,000/-. It is further argued that complainant has not questioned the aforesaid documents during the testimony of DW1 to DW3. Complainant has not specified the date of transaction in question. Ld. counsel has relied upon S.K. Jain Vs Vijay Kalra, 2014 (1) DCR 547, Shirish Vasant Borkar Vs Sh. Vijay Kumar K Pillienkear Fadke & Anr, 2014 (1) DCR 184, Mohan Singh Vs Prem Singh, 2003 CriLJ 11 and Nishi Kant Jha Vs. State of Bihar 1969 Cr. L.J. 57. Ld. counsel contends that the Crl. App. No. 01/14 20-08-2014 5 of 28 evidence led by both the parties has not been properly appreciated by the Ld. Trial Court and the same needs to be reappraised.
7. Sh. B.R. Sharma, Ld. counsel for the respondent has argued that the Ld. M.M. has rightly convicted the accused. Complainant has proved that the cheque in question was issued by the accused in discharge of a liability and the accused has admitted that the amount to be paid by him was Rs. 16,50,000/- and not Rs. 13,74,000/-, as is being claimed by him as an afterthought. He further contended that accused has not been able to rebut the presumption u/s 139 NI Act. It was also submitted that no agreement to sell was executed between the parties. However a final receipt, Mark A and Power of Attorney, Mark, B, produced by the accused in his evidence, were executed. He further submitted that in the receipt Mark A, the amount paid in cash i.e. Rs. 13,75,000/- was mentioned but the amount of the three cheques i.e. Rs. 3,00,000/- was not mentioned.
8. I have heard Sh. P.D.P. Deo and Sh. Neeraj Jha, Ld. counsels for the appellant and Sh. B.R. Sharma, Ld. counsel for the respondent and have also perused the record.
9. To prove a case u/s 138 NI Act, the complainant is required to prove the following ingredients :-
Crl. App. No. 01/14 20-08-2014 6 of 28 (a) A cheque was drawn by accused on an account maintained by him with a bank, (b) It was drawn by the accused for payment of money to the
complainant in discharge of a legally enforceable debt or liability,
(c) The cheque was presented by the complainant within 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier,
(d) The cheque was returned by the bank unpaid due to insufficiency of funds,
(e) The complainant made a demand for the payment of the cheque amount by giving a notice in writing to the accused within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid, and
(f) The accused failed to make payment of the said amount of money to the complainant within 15 days of the receipt of the notice.
10. From the evidence and other material on record and arguments advanced by the parties, there appears to be no dispute about the following facts:-
(a) Complainant Kuldeep Kumar s/o Sh. Maha Singh, Sh. Surender and Sh. Ram Niwas, both sons of Sh. Ramdhan entered into an agreement with accused Dharampal for sale of land measuring 12.65 hectare bearing Khasra No. 238 situated in village Kotdi, Tehsil Kolayath, Distt. Bikaner.
Crl. App. No. 01/14 20-08-2014 7 of 28 (b) Accused Dharam Pal had drawn cheque No. 465170 dated
20-02-2010, Ex. CW1/A for Rs. 1,00,000/- on account No. 60024532758 maintained by him in Bank of Maharashtra, in the name of the complainant,
(c) The said cheque was presented by complainant Kuldeep Kumar in his bank i.e. Punjab & Sind Bank, Najafgarh Branch, New Delhi on 30-03-2010,
(d) The said cheque was returned by the bank unpaid due to insufficiency of funds, vide return memo dated 03-04-2010, Ex. CW1/B,
(e) The complainant made a demand to the accused for payment of the cheque amount, by giving a notice dated 17-04-2010, Ex. CW1/C,
(f) Accused did not make payment of the cheque amount to the complainant within 15 days of the receipt of the said notice.
11. The only fact in dispute is whether the cheque, Ex. CW1/A was issued by the accused for payment of money to the complainant in discharge of any legally enforceable debt or other liability towards the complainant.
12. It is well settled that the onus to prove guilt of the accused lies upon the prosecution. However, in some cases, upon establishment of certain facts, statutory presumptions arise regarding guilt of the accused. In a case under section 138 NI Act, such presumptions arise under section 118 (a) and 139 of the said Act. Section 118(a) of the NI Crl. App. No. 01/14 20-08-2014 8 of 28 Act provides as under:-
"118. 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;
XXXXXXXXXX"
Further, section 139 of the NI Act stipulates as under:-
"139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
13. The above presumptions shift the onus upon the accused to prove that the cheque was not issued in discharge of any legally enforceable existing debt or liability. Thus, in such cases, the initial onus lies upon the drawer of the cheque to prove that the cheque in question was issued without consideration. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court held, "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused Crl. App. No. 01/14 20-08-2014 9 of 28 beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, ......."
14. However, the presumptions u/s 118 (a) and Section 139 N.I. Act are rebuttable. In Hiten P. Dalal Vs. Bratindranath Banerjee (supra), it was further held, ".........but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary." Once some evidence has been led by the party on whom the onus is placed by the presumption to prove a fact, the initial onus placed on him stands discharged and thereafter it has to be decided on the basis of evidence led by the parties whether the cheque in question was issued for consideration or not.
15. It is well settled that the standard of proof for the accused to rebut the presumption under section 139 and 118 (a) of the NI Act is preponderance of probabilities and he is not required to prove his case beyond a reasonable doubt. For rebutting the presumption, accused can raise a probable defence. He can do so by leading direct evidence Crl. App. No. 01/14 20-08-2014 10 of 28 or circumstantial evidence or by relying upon the broad improbabilities in the prosecution case or by raising presumption of law or fact in his favour from the evidence led by either party. In this regard, reference can be made to the following judgments :-
a) Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, wherein the Hon'ble Supreme Court held, "Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. ..........."
b) Harbhajan Singh v. State of Punjab and another, AIR 1966 SC 97, wherein the Hon'ble Supreme Court held, "In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him..."
c) V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762, wherein the Hon'ble Supreme Court held, "It is well-established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt"
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d) In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808,
the Hon'ble Supreme Court held,
"There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
e) In The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961, the Hon'ble Supreme Court held, "Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt."
f) In G. Vasu v. Syed Yaseen Sifuddin Quadri, AIR 1987 AP 139,
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the Hon'ble Andhra Pradesh High Court held,
"From the aforesaid authorities, we hold that once the defendant adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there is no consideration in the manner pleaded in the plaint or suit notice or the plaintiff's evidence, the burden shifts to the plaintiff and the presumption 'disappears' and does not haunt the defendant any longer."
It was further held, " 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 rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance."
g) In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35], though in a civil case, the Hon'ble Supreme Court held, "Upon consideration of various judgments as noted hereinabove, the Crl. App. No. 01/14 20-08-2014 13 of 28 position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff (sic defendant) is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt"
h) In M.S. Narayana Menon Vs. State of Kerala (2006) 6 SCC 39, the Hon'ble Apex Court held, Crl. App. No. 01/14 20-08-2014 14 of 28 " Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. "
i) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court held, " The accused may also rely upon presumption 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."
j) In Shirish Vasant Borkar Vs. Shri Vijaykumar K. Pillienkar Fadke & Anr, 2014 (1) DCR 184, the Hon'ble Bombay High Court held, " The standard of proof for the accused to rebut the presumption under section 139 and 118(a) of the NI Act is pre-ponderance of probabilities." In this regard, a reference can also be made to S.K. Jain Vs. Vijay Kalra, 2014 (1) DCR 547 and John K. John Vs. Tom Varghese and Anr., 2007 (4) Civil Court Cases 690 (SC).
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16. To properly appreciate the evidence on the fact in issue, it is pertinent to note that the nature of transaction to which issuance of cheque in question is ascribed is sale of immoveable property. As per section 54 of The Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908, sale of tangible immoveable property of the value of one hundred rupees and upwards can be made only by a registered instrument. As per The Powers of Attorney Act, 1882, a person may empower another person to act for and in his name to sell land etc., by executing an instrument. Thus, there cannot be any sale of immoveable property of the value of one hundred rupees and upwards, without execution of sale documents.
17. It is also pertinent to refer to section 91 of the Indian Evidence Act, 1872 which stipulates that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible. As per Section 65 of the above Act, secondary evidence is admissible, inter-alia, if the party offering evidence of contents of such a document cannot for any reason not arising from his Crl. App. No. 01/14 20-08-2014 16 of 28 own default or neglect produce it in a reasonable time or if the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved. Further, section 92 of the said Act provides that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. The above sections affirms the basic rule of producing the " best available evidence" before the court.
18. It is also relevant to refer to section 114 of the said Act which stipulates that Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration
(g) to this section provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.
19. It is in the light of the above provisions of law that the Crl. App. No. 01/14 20-08-2014 17 of 28 evidence has to be appreciated.
20. There is no dispute that though accused had issued the cheque in question, the receipt of the amount paid was issued by the complainant, Sh. Kuldeep, Sh. Surender and Sh. Ram Niwas in the name of Sh. Naveen Kumar, son of accused Dharam Pal and power of attorney was also executed in his name. It is well settled that the debt or liability towards which the cheque is issued should be a legally enforceable debt or liability. This would have reference to the nature of debt or liability and not to persons against whom debt or liability could be enforced. The debt or other liability may be due from any person and it is immaterial that the cheque was issued for the discharge of the drawer's own liability as it can be issued for the discharge of another man's debt or liability. In this regard, reference can be made to Spring Fields Financial Services Ltd. Vs. State of Andhra Pradesh, 2006 Cr.L.J. 2090, Krishan Bai Vs. Arti Press (1992) 2 KLT 40 and C.N. Alexander Vs. Jaseph Chacko (1995) 82 Comp. Cas. 368 (Ker).
21. In the instant case, the complainant has generally testified on the same lines as his complaint. He deposed that in the month of February 2010, the accused had sold his agricultural land in the sum of Rs. 16,50,000/-. During cross examination, he stated that the said land was in his name and in the name of Surender and Ram Niwas. He Crl. App. No. 01/14 20-08-2014 18 of 28 further stated that accused paid Rs. 13,50,000/- in cash and three cheques in the sum of Rs. 1,00,000/- were given to each owner.
22. On the other hand accused Dharam Pal testified as that he has bought a plot in Bikaner in Rajasthan from Sh. Kuldeep, Ram Niwas and Surender for a sum of Rs. 13,74,000/-. The above said sellers have executed 'Mukhtiyarnama', Ex. DW1/2 to Ex. DW1/4 in their name. At the time of execution of 'Mukhtiyarama', he has paid Rs. 2 lakh each to the above said sellers. He has also given 3 cheques in the name of above said sellers for the purpose of remaining amount. One of the cheque, Ex. DW1/5 has been returned by Sh. Ram Niwas after payment of remaining amount. He has returned all the remaining amount to the sellers through receipt, Mark A. The said persons have also executed GPA, Mark B in the name of his son Naveen. Thereafter he has sold the property in Rajasthan where he has given all the original documents of the above said property. During his cross- examination, he denied the suggestion that he has not returned Rs. 1,00,000/- to the complainant Kuldeep. He further stated that he does not know the reason for mentioning Rs. 13,75,000/- instead of Rs. 13,74,000/- in receipt, Mark A. No suggestion has been given to him that the receipts Ex. DW1/2 to Ex. DW1/4 were not genuine or that the receipt, photocopy of which is Mark A or the GPA, photocopy of which was Mark B, were not executed by complainant Kuldeep Kumar.
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23. DW2 Sh. Rakesh Kumar has testified that on 15-11-2009, there was a 'bayana' with Kuldeep, Surender and Ram Niwas for the property in Bikaner with Dharampal and Naveen. It was agreed that the property would be sold for a consideration of Rs. 13,75,000/-. On 14-01-2010 one receipt, Mark A was executed between Dharampal and Naveen, Kuldeep, Surender and Ram Niwas. Thereafter, on 18-01-2010 a Power of Attorney, Mark B was executed between the parties. His signature is there at point A as witness. Three cheques of Rs. 1 lakh (each) were given to Kuldeep, Surender and Ram Niwas separately on 'bayana' day amongst which one of the cheque was returned by Ram Niwas on 14-01-2010 at the time of final payment. Dharampal does not have any liability towards the complainant to pay the money in question. During his cross examination, he denied the suggestion that the 'bayana' receipt was a forged document or that the signature of Kuldeep and Surender do not belong to them. He admitted the suggestion that on the final receipt dated 14-01-2010, signatures of Kuldeep, Surender and Ram Niwas were done before him. He further stated that the deal was not entered before him. He does not know as to how much amount was agreed for above deal. He admitted that cheque of Rs. 1,00,000/- was given to all three sellers against liability.
24. DW3 Sh. Naveen has testified that they have bought property in Bikaner from Surender, Ram Niwas and Kuldeep. They have agreed to pay Rs. 13,74,000/- for the above property and paid an Crl. App. No. 01/14 20-08-2014 20 of 28 advance a sum of Rs. 2 lakh each to the parties. Thereafter, they had also given cheque of Rs. 1 lakh each to the sellers for the purpose of security. At the time of above agreement, receipts, Ex. DW1/2, Ex. DW1/3 & Ex. DW1/4 were executed by all three sellers. After two months of the execution of the above said receipts, they have paid the balance of Rs. 7,75,000/-, though it was only Rs.7,74,000/- but they have paid Rs. 7,75,000/-. Except Ram Niwas, none of the other two sellers returned the security cheques to them on the day of remaining payment. It was told to them that cheques would be returned to them within one day or two. Thereafter, Power of Attorney, Mark B was executed between him and the above three sellers. During his cross examination, he denied the suggestion that the deal of the property was for a consideration of Rs. 16,50,000/-. He also denied the suggestion that the 'bayana' receipt dated 15-11-2009 is forged or that the signatures of Surender Singh and Kuldeep are forged. He further stated that he had paid full and final payment on 14-01-2010. He further stated that the cheque was given for the purpose of security. He denied the suggestion that he had paid Rs. 13,74,000/- on 14-01-2010 and the rest amount of Rs. 3 lakhs was due against which he had issued three cheques i.e. Rs. 1 lakh each to all the three sellers. He also stated that he did not have bank account on 15-11-2009, therefore, the cheques were given by his father.
25. It is pertinent to note that the transaction in question was Crl. App. No. 01/14 20-08-2014 21 of 28 sale of land. Complainant has neither pleaded nor deposed about execution of any document in this regard. He stated that in February 2010, accused sold his land, however, he has not specified any date of such sale. As earlier discussed, the same could not have taken place verbally or without execution of documents. However, the complainant is silent about the same. Thus, it can be presumed that such evidence would, if produced, be unfavorable to him. This presumption becomes evident from the documents produced by the accused in his evidence. Accused had produced receipts Ex. DW1/2 to Ex. DW1/4 executed by Sh. Kuldeep, Sh. Surender and Sh. Ram Niwas according to which the said three persons have agreed to sell their land at Kotdi, Kolayath, Bikaner to Sh. Naveen Kumar son of Sh. Dharampal for a sum of Rs. 4,58,000/- each, out of which Rs. 2 lakh was paid on 15-11-2009. The same shows that the total consideration for sale was Rs. 13,74,000/-. No question has been asked to him regarding the receipts Ex. DW1/2 to Ex. DW1/4. DW 2 Sh. Rakesh Kumar denied the suggestion that the bayana receipt was a forged document or that the signature of Kuldeep and Surender do not belong to them. DW 3 Sh. Naveen Kumar also denied the suggestion that the bayana receipt dated 15-11-2009 is forged or that the signatures of Surender Singh and Kuldeep are forged. The testimonies of all the defence witnesses in this regard have gone unimpeached.
26. It is pertinent to refer to Munshi Prasad Vs. State of Bihar, Crl. App. No. 01/14 20-08-2014 22 of 28 (2002) SCC 351, wherein the Hon'ble Supreme Court held that the evidence tendered by the defence witness can not always be termed to be tainted one by reason of the factum of the witness being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on par with that of the prosecution.
27. The above testimonies of DW 1 Sh. Dharam Pal, DW 2 Sh. Rakesh Kumar and DW 3 Sh. Naveen Kumar coupled with the fact that complainant has neither pleaded nor produced any document relating to the sale in question, leads to the inference that Ex. DW1/2 to Ex. DW1/4 were executed between the parties. Any oral evidence contrary to the contents of Ex. DW1/2 to Ex. DW1/4 has to be excluded by virtue of section 92 of the Indian Evidence Act, 1872. The said receipts falsifies the complainant's case that the sale consideration was Rs. 16,50,000/-. It also negates his case, by necessary implication, that the cheque in question was issued by the accused for payment of money to the complainant in discharge of a legally enforceable liability.
28. The original receipt dated 14-01-2010 and the original GPA dated 18-01-2010, photocopies of which are Mark A and Mark B respectively, have not been produced by the accused, though he stated that he has sold the property in Rajasthan where he had given all the Crl. App. No. 01/14 20-08-2014 23 of 28 original documents of the property and can bring the record from the subsequent purchaser if any need arises in the court. However, when Mark A and Mark B were produced before the trial court, no objection was taken by the complainant. Rather, during cross examination of DW2 Sh. Rakesh Kumar, a suggestion was given to him that on the final receipt dated 14-01-2010, signatures of Kuldeep, Surender and Ram Niwas were done before him. In this regard, it is pertinent to refer to Alacs Finanz Ltd. Vs. Oksh Technologies, A.I.R. 2005 Del. 376, wherein the Hon'ble Delhi High Court held, " In the case in hand since the original Resolution was in possession and power of the plaintiff, learned Trial Judge was right in observing that only a certified copy of the same having been produced, the primary evidence had been kept back. But, then, unfortunately, the learned Trial Judge was right limited only to that extent. What was lost sight of was and as already noticed, when the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination. Rather, and we may say so, even at the risk of repetition, that in cross-examination its correctness was rather admitted. Now, the Rule that where primary evidence is attainable, the secondary evidence stands excluded is not so rigid and one such case of flexibility is where no objection is made by the party against whom the inferior evidence is proved. Where secondary evidence is admitted without there being a proper objection it becomes primary. The correct legal position we feel is that where a Crl. App. No. 01/14 20-08-2014 24 of 28 party waives proof of circumstances justifying the giving of secondary evidence, it cannot later come out of the slumber and raise objection." A reference can also be made to Dayamathi Bai Vs. K.M. Shaffi, A.I.R. 2004 S.C. 4082 and Ranvir Singh Vs. Union of India, A.I.R. 2005 S.C. 3467 in this regard.
29. It is also well settled that secondary evidence is admissible when the party offering evidence of the contents of the document cannot for any reason, not arising from his own default or neglect produce the original document in a reasonable time. Further, during the arguments, it was submitted on behalf of the complainant that at the time of sale, Receipt, Mark A and Power of Attorney, Mark B were executed. As per receipt, Mark A, complainant Kuldeep Kumar and his co-sellers Surender Singh and Ram Niwas have received a sum of Rs. 13,75,000/- from Naveen Kumar s/o accused Dharam Pal towards full and final payment in respect of sale of land in question. The same is contrary to his version that the amount of sale consideration was Rs. 16,50,000/-. The argument of the Ld. counsel for the complainant that the cheque amounts were not included while issuing receipt, Mark A is not tenable.
30. It is also pertinent to note that as per the complainant, the accused had sold his land in the month of Feb, 2010. However, the receipt, Mark A is dated 14-01-2010 and the Power of Attorney, Mark B Crl. App. No. 01/14 20-08-2014 25 of 28 is dated 18-01-2010. Complainant has neither pleaded nor produced any document executed in February 2010 relating to the alleged sale which took place in February 2010. There is also no explanation by the complainant as to how the sale took place in February, 2010, when the above documents relating to sale were executed in January, 2010.
31. There is also force in the contention of the accused that in his statement u/s 313 Cr.P.C., in response to question No. 1, the words and figures, " of Rs. 16,50,000/-" appears to have been wrongly recorded on account of some confusion. Record reveals that in his plea of defence, dated 21-08-2012, the accused stated that he had purchased agricultural land from the complainant for a sum of Rs. 13,00,000/- approximately. In his evidence as DW 1, accused Dharam Pal stated that the amount of sale consideration was Rs. 13,74,000/-. His testimony is corroborated by DW 2 Sh. Rakesh Kumar and DW 3 Sh. Naveen Kumar. The receipts, Ex. DW1/2 to Ex. DW1/4 produced by him also show the sale consideration to be Rs. 13,74,000/-. Further, as per receipt, dated 14-01-2010, Mark A also, the amount paid to complainant and co-sellers towards full and final payment in respect of sale of land is Rs. 13,75,000/-. The accused has consistently maintained that the consideration amount was Rs. 13,74,000/-. Thus the above answer appears to have been inadvertently wrongly recorded. It cannot negate the documentary evidence brought on record with regard to the amount of sale consideration.
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32. Applying the test of preponderance of probabilities, it is considered that accused has been able to show that the amount of sale consideration was Rs. 13,74,000/- and not Rs. 16,50,000/- and that he had paid Rs. 13,75,000/- to the complainant. Consequently, it appears that the cheque was not issued by him in discharge of any legally enforceable debt or liability but it was only a security cheque.
33. In view of the aforesaid discussion, it is considered that the accused has been able to rebut the presumption u/s 118 and 139 of the N.I. Act. The onus thereafter shifted upon the complainant to prove that the sale consideration was Rs. 16,50,000/- and consequently that the cheque in question was issued in discharge of a legally enforceable debt or liability. However, the complainant has failed to discharge the said onus. Accordingly, the appeal is allowed and judgment dated 05-02-2014 and order on sentence dated 13-02-2014 are set aside. Appellant/accused is acquitted of the charge levelled against him. His bail bonds are cancelled and his surety is discharged.
34. Appellant/accused would be entitled to refund of fine, if already deposited.
35 A copy of the judgment, along with Trial Court Record, be sent to the Ld. Trial Court.
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36. Appeal file be consigned to Record Room.
Announced in the Open Court
today on 20th Day of August, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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