Delhi District Court
Ayaz Usmani vs Rakesh Kumar on 23 November, 2023
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Appeal No.124/2023
Ayaz Usmani @ Raju
S/o Idrish Usmani
R/o C-842, Jahangir Puri
Delhi-110034
Presently at:
87, Gali no.4, Bhalaswa Village
Harijan Colony, Delhi 110033 .... Appellant
Versus
Rakesh Kumar
S/o Sh. Atam Prakash
R/o House No.B-258/1, Plot No.3
Dharam Shala Road, Swaroop Nagar
Delhi-110042.
.... Respondent
Date of Institution : 20.04.2023
Date of arguments heard : 07.08.2023
Date of Judgment : 23.11.2023
CA No. 124/2023
Ayaz Usmani @ Raju Vs. Rakesh Kumar. 1of 26
JUDGMENT
1. Appellant namely Ayaz Usmani @ Raju has filed present appeal thereby challenging the impugned judgment dated 16.03.2023 and order on sentence dated 2203.2023 passed by Ld. Trial Court in Complaint Case No.7883/2021.
2. Appellant herein was accused and respondent was complainant, before Ld. Trial Court. In my subsequent paragraphs, appellant and respondent shall be referred as accused and complainant, for avoiding confusion.
3. Trial Court record reveal that complainant filed complaint case u/s 138 Negotiable Instrument Act (hereinafter referred as N.I.Act), against accused.
4. Case of complainant is that he had cordial relations with accused since 2015. On 24.09.2016 he had advanced friendly loan of Rs.1lacs to accused, for six months, in cash. In January 2017 he advanced further loan of Rs.2lacs to accused as sister in law of accused was contesting Delhi Municipal Corporation Election, 2017. That amount was arranged by complainant from his brother Naresh Kumar and wife of Naresh Kumar namely Smt. Laxmi. For repaying total loan amount of Rs.3lacs, accused issued cheque in question which complainant did not put for encashment with his banker as accused time and again conveyed him CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 2of 26 that due to one reason or the other, there was no sufficient balance in his bank account. Finally, complainant deposited cheque in question which was dishonored for the reason "Funds Insufficient" as per cheque returning memo dated 21.06.2021. Subsequently, complainant issued legal demand notice to accused but accused did not pay cheque amount in question. Hence, complainant moved the court by filing case u/s 138 N.I.Act.
5. After filing of complaint, Ld. Trial court took cognizance of offences and based on pre-summoning evidence led by complainant, summoned accused.
6. Subsequently, accused appeared in court after receiving summons and proceedings u/s 207 Cr.P.C were concluded. Accused was put notice u/s 251 Cr.P.C and he did not plead guilty. He claimed trial. Matter was then fixed for post-summoning complainant evidence.
7. Accused filed application u/s 145 (2) NIAct, which was allowed by Ld. Trial Court and he was given liberty to cross examine complainant.
8. Complainant examined himself as CW1 and reiterated the contents of his complaint in his affidavit Ex.CW1/N. He relied upon documents viz., self attested copy of adhar card of complainant Ex.CW1/A, original cheque bearing no.607930 Ex.CW1/B, original bank returning memo dated 21.06.2021 Ex.CW1/C, original bank CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 3of 26 returning memo dated 13.08.2021, copy of legal notice dated 07.09.2021 Ex.CW1/E, speed post receipts Ex.CW1/F & Ex.CW1/G, tracking report of postal receipt Ex.CW1/H, returned envelope affixed bar code Ex.CW1/I, returned envelope affixed bar code Ex.CW1/K and certificate u/s 65 B of Indian Evidence Act Ex.CW1/L. After examining himself, complainant closed his evidence.
9. Matter was then fixed for recording of statement of accused u/s 313 Cr.P.C.
10. In response to incriminating evidence, put to accused u/s 313 Cr.P.C, he replied that he had taken loan of Rs.1lac only from complainant, which he had returned to Rakesh Kumar S/o Ami Chand as he had taken the said loan from complainant through Rakesh Kumar S/o Ami Chand. He denied that he had taken loan of Rs.2lacs from complainant. He denied that he had filled particulars in cheque in question, though he admitted that he had signed said cheque. He claimed that he had given said cheque to Rakesh Kumar S/o Ami Chand who told him that said cheque was misplaced. Therefore, he never got back said cheque from Rakesh Kumar S/o Ami Chand. He preferred to lead defence evidence and therefore, matter was fixed for defence evidence. Accused examined himself as DW1 and Rakesh Kumar S/o Ami Chand as DW2. After examining said witnesses, accused closed his evidence and matter was fixed for final arguments.
11. After hearing final arguments, matter was fixed for judgment.
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12. Subsequently, Ld. Trial Court convicted accused u/s 138 N.I.Act and passed order on sentence. Thereafter, feeling aggrieved, accused filed present appeal before this court.
13. Since, accused has raised arguments with respect to appreciation of applicability of provision u/s 138 N.I.Act and with respect to appreciation of presumptions u/s 118 and 138 N.I.Act, so relevant law with regard to the said provisions, has to be mentioned.
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14. Before proceeding further, I must mention the relevant law pertaining to sec. 138 NI Act. In order to appreciate and decide present appeal, I find it relevant to mention here law relating to Section 138 N.I. Act and with respect to the presumptions U/s. 118 (a) and 139 N.I. Act. The said provisions and the interpretations given by higher echelon of Judiciary, are relevant. Therefore, they are mentioned below:-
"138 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 deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 5of 26 punished with imprisonment for (a term with may be extended 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."
15. Hon'ble Apex Court had the occasion to appreciate and interpret aforesaid provision in case titled as Kusum Ingots and Alloys Ltd. Vs. Pennar Peterson Securities Ltd. (2000) 2 SCC
745. In the said judgment Hon'ble court observed that in order to successfully prosecute the drawer of a cheque for an offence U/s. 138 NI Act, following facts are required to be proved successfully.
"a) A person must have drawn a cheque on an account CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 6of 26 maintained by him in a bank for payment of a certain amount of money to another person from out of that account for discharge of any debt or other liability.
b) 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, which ever is earlier.
c) That cheque is returned by the bank unpaid, either because 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.
d) The payee or the holder in the 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 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of said notice.........."
".............Judicial statements have deferred as to the quantum of rebutting evidence required. In Kundun Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 7of 26 that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra : 1964 Cri. L 1437 :
1964 Cril 1437, where this Court reiterated the principle enunciated in State of Madras v. Vaidyanath Iyer (supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of accused. On the other hand in the case of mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by provision cannot CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 8of 26 be said to be rebutted......"
16. Section 118 (a) and Section 139 of NI Act are mentioned in verbatim below :-
"Section 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, was indorsed, negotiated or transferred for consideration;"
"Section 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 the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
17. It is a well settled legal position that the presumptions U/s.
118 and 139 NI Act are rebuttable presumptions and the burden lies on the accused to prove that he had no liability/debt on the date of issue of the cheque. It is also a settled principle of law that to bring home an offence under any of the penal provisions, it is essential to prove the case beyond reasonable doubt and the ingredients of the offence should be satisfied. Hon'ble Apex court had the occasion to appreciate the aforesaid provisions in certain CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 9of 26 case laws which are relevant for the purpose of adjudication of this appeal. The relevant observations of the said case laws are mentioned in my subsequent paragraphs.
18. In case titled as M.S. Narayana Menon Vs. State of Kerala, 6 SCC 39, it was held that;
"While dealing with that aspect in a case under Section 138 of the Negotiable Instruments Act, 1881, this court held that presumptions under sections 118 (a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. The Court observed:
In terms of section 4 of the Evidence Act whenever it is provided by the Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in section 3 of the Evidence Act (the interpretation clause).
Applying the said definitions of "proved or "disproved" to the 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 CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 10of 26 defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the relies. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence to exist or consider its existence to be reasonable probable, the standard of reasonability being that of the "prudent man".
19. In Case titled as Hiten P.Dalal Vs. Bratindranath Banerjee (2011) 6 SCC 16 it was held as under:-
"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 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 exists, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary."CA No. 124/2023
Ayaz Usmani @ Raju Vs. Rakesh Kumar. 11of 26
20. Hon'ble Apex court in case titled as Krishna Janardhan Bhatt Vs. Dattatraya G.Hegde (2008) 4 SCC 54 observed; "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
"Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
21. Further, in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal (1999) 3 SCC 35 it was observed as under:-
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 12of 26 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 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 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. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 13of 26 record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
"Section 139 of the Act is an example of 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 the absence of compelling justification, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is settled position that when an accused has to rebut the "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 CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 14of 26 clarified in 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."
22. In Case titled as M/s. Kumar Exports Vs. M/s. Sharma Carpets Crl. Appeal No. 2045 of 2008 passed by Hon'ble Supreme Court of India, it was held as under:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the 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 CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 15of 26 in every case 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 server 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 non-existence 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 upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 16of 26 an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
23. In Case titled as John K. John v. Tom Varghese 2007 (4) Civil Court Cases 690 (S.C), it was held as under:-
".....Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on records by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India. The High Court was entitled to take notice of the conduct of CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 17of 26 the parties. It has been found by the High Court s of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged....."
24. Above case law, therefore, mandates that presumptions under Section 118 and 139 N.I. Act are rebuttable presumptions. They can be rebutted by accused, on the basis of cross examination of complainant witness and/or on the basis of his own defence evidence. Complainant in such case has to prove its case beyond reasonable doubt. Accused is not supposed to prove his case beyond reasonable doubt, rather he has to probablise his defence based on preponderance of probabilities, which he can do by cross examining complainant witness and/or by leading defence evidence.
25. Reverting back to the facts of present case, I find that case of complainant was that he had given friendly loan of Rs.1lac on 24.09.2016, in cash and another amount of Rs.2lac in janury, 2017. Further, amount of Rs.1lac was given by complainant, by himself, whereas amount of Rs.2lacs was arranged by CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 18of 26 complainant from his brother Naresh Kumar and wife of brother namely Laxmi. From January, 2017 till January, 2021, complainant made various requests to accused to repay back aftoresaid loan amounts but of no avail. Finally, complainant was forced to issue legal demand notice which did not help his cause and therefore, he moved the court.
26. Accused on the other hand, claimed that he had taken Rs.1lac as loan from complainant through Rakesh Kumar S/o Ami Chand, which he had paid to complainant after 8 months. He denied that he had received Rs.2lacs from complainant in January, 2017 as friendly loan. As per him, cheque in question was given by him to Rakesh Kumar S/o Ami Chand who never returned the same.
27. Based on said two different claims, evidence brought on record by the parties, has to be appreciated.
28. Since, complainant had moved the court, so he had to prove his case beyond reasonable doubt.
29. His complaint, u/s 200 Cr.P.C formed the bedrock of this litigation, which needed a closer appreciation.
30. Complainant stated in his complaint that he had given Rs.1lac in cash to accused on 24.09.2016. He did not explain as CA No. 124/2023 Ayaz Usmani @ Raju Vs. Rakesh Kumar. 19of 26 to from where he had arranged that amount. It was not his case that he had withdrawn the said amount from account of his bank. Further, he claimed that in January, 2017 he had given Rs.2lacsin cash by arranging from his brother Naresh Kumar and wife of his brother namely Laxmi. Again, he did not explain as to from where Naresh Kumar and wife of Naresh Kumar had arranged that amount of Rs.2lacs. He did not explain as to what specific amount was given by Naresh Kumar and what specific amount was given by Laxmi. Complainant did not explain the terms and conditions of loan which he had advanced to accused. He did not explain as to why he advanced Rs.2lacs in january, 2017 when accused had not repaid previous loan amount of Rs.1lac. Complainant did not explain as to how he had become acquainted with accused since 2015. Further, complainant failed to explain as to why he waited from Jaunary, 2017 till January 2021, before put cheque in question for encashment. He failed to explain as to why he believed the evasive conduct of accused in repaying back loan amounts in question. His acquaintance with accused and his proximity with accused, were material aspects, based on which I could have appreciated his conduct. As such, complainant failed to explain said aspects, in his complaint.
31. As such, complaint of complainant was not believable and trustworthy.
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32. Complainant got the opportunity to remove aforesaid short-comings when he entered in witness box, during trial. Surprisingly, complainant did not touch upon any of the above- mentioned aspects in his examination in chief.
33. In his cross examination, complainant deposed that he was running a wholesale stationery shop and was a 12 th pass. He deposed that he had not obtained any signatures from accused on any document while advancing friendly loan amounts in question. As per him, no one was present when said friendly loan amounts were advanced to accused. He denied that any interest had to be paid by accused and the fact that he had mentioned advancement of said amounts to accused in his income tax returns. Said testimony revealed that he did not take adequate precaution while advancing amounts to accused. The fact that he was a shopkeeper who had studied upto 12th class indicated that it was not his primary job/work to advance loan to accused. I failed to understand as to what was the urgency, based on which he asked his brother and wife of brother to arrange Rs.2lacs for advancing it to accused. As per his testimony, wife of his brother namely Smt. Laxmi was a housewife. If that is so, then he should have explained as to how Smt. Laxmi had arranged amount for giving it to him. His testimony was silent with regard to all the said aspects and it made his testimony unbelievable.
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34. Complainant could have removed aforesaid doubts, had he examined his brother Naresh and wife of his brother namely Smt. Laxmi. He did not do so, for the reason best known to him.
35. As such, testimony of complainant did not prove beyond reasonable doubt that he had advanced Rs.3lacs in total as friendly loan to accused. In the absence of proof of said fact, it cannot be concluded that accused had legally enforceably liability to pay cheque amount in question.
36. This brings me to the version of accused.
37. As such, accused was not supposed to prove his defence, beyond reasonable doubt. He had to probablise his defence on the basis of preponderance of probabilities. This he could have done, either by cross examining complainant witness or by leading defence evidence or both. In this case, he not only cross examined complainant but led evidence also, in his defence.
38. Categorical version of accused was that he never received loan of Rs.3lacs from complainant. His case was that he had taken Rs.1lac from complainant, through common friend namely Rakesh kumar S/o Ami Chand which he returned to complainant. He denied that he received further loan amount of Rs.2lacs from complainant.
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39. In order to probablise his said defence, he was able to bring on record facts viz., incapacity and improbability of complainant to lend him loan of Rs.3lacs, improbability of brother and wife of brother of complainant to lend said loan amount, absence of any independent person when loan amount was given to him by complainant, absence of terms and conditions of loan agreement and callous attitude of complainant in moving the court. Said facts were brought on record when complainant was cross examined by accused.
40. Besides that accused examined himself as DW1 and reiterated his above defence in his examination in chief. He was not given any suggestion by complainant, regarding the specific date, time and place when he had received loan from complainant. He refuted suggestions based on receiving of Rs.1lac and Rs.2lacs from complainant.
41. In his testimony DW1 stuck to his version that he had a friend namely Rakesh Kumar S/o Ami Chand. He denied that he had demanded his cheque which is cheque in question from complainant or from Rakesh Kumar S/o Ami Chand. His said inaction did not prove the case of complainant beyond reasonable doubt. As such, no material fact supporting the case of complainant was culled out in his testimony by complainant.
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42. DW2 Rakesh Kumar S/o Ami Chand was the friend of accused, who testified that he was instrumental in getting loan of Rs.1lac being given to accused by complainant. He also testified that cheque in question was given by accused as demanded by complainant for security purpose and that loan amouknt of Rs.1lac was repaid by accused to him which he advanced to complainant. Despite that complainant never returned cheque in question. He brought on record two receipts Ex.DW2/2 & Ex.DW2/3.
43. Those receipts were objected to by complainant on the ground of admissibility. As such, originals of said receipts were seen and returned by the court. Complainant never disputed his hand writing on those receipts. Therefore, objection raised by complainant with respect to said receipts stands dismissed. The said receipts therefore, probablise the defence of accused regarding him paying interest to complainant on account of him receiving Rs.1lac as loan.
44. Again, DW2 was not given any suggestion by complainant regarding the specific date, time and place when he had given Rs.2lacs to accused. He refuted the suggestions based on him deposing falsely at the instance of accused and him being an interested witness.
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45. No material fact was culled out by complainant, proving the case of complainant, after cross examining him.
46. Therefore, I believed the testimonies of DW1 & DW2, probable and believable.
47. Ld. Trial Court did not whisper about the truthfulness of the case of complainant in impugned judgment. Ld. Trial court simply took off from the stage of defence of accused. That approach was not legally correct. Once, complainant had moved the court, he had to prove his case beyond reasonable doubt. If that burden is not discharged by complainant, there was no occasion for Ld. Trial Court to go to the stage of appreciation of defence evidence. Since, complainant herein failed to prove his case, beyond reasonable doubt, so accused was able to probablise his defence.
48. Based on appreciation of evidence brought on record by the parties, I find that complainant failed to prove beyond reasonable doubt that he had advanced Rs.3lacs as loan to accused and for repaying back said loan amount, accused had issued cheque in question. Further, I find that defence of accused that he had received Rs.1lac from complainant with the assistance of Rakesh Kumar S/o Ami Chand, which he returned to complainant, was a probable defence.
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49. Present appeal stands allowed.
50. Impugned judgment and order on sentence stands set aside.
Announced in open Court [Prashant Sharma]
On 23.11.2023 ASJ-02/South East District
Saket Courts/New Delhi
CA No. 124/2023
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