Delhi District Court
Sh. Kumar Gorave vs State on 26 July, 2021
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CA No.09/2020
In the matter of
Sh. Kumar Gorave
S/o Sh. Dinesh Kumar
R/o 3, Bada Bazar Purvi, Opposite Old Tehsil
Budhana, Muzaffar Nagar, Uttar Pradesh.
............... Appellant
Vs.
1. State
2. C.S. Murleedharan,
S/o Shri Shankra Menon,
R/o C-14, 1st Floor, Ardee City,
Sector -52, Gurugram, Haryana-122 002
................. Respondent
Date of institution : 13.01.2020
Final arguments : 19.07.2021
Date of order : 26.07.2021
ORDER
26.07.2021
1. This appeal has been filed against the impugned order dated 07.12.2019 vide which the appellant Kumar Gorave was convicted for the offence under section 138 of the Negotiable Instruments Act 1881 (N.I. Act) and against CA No.9/2020 Kumar Gorave Vs State & Ors Page No.1/19 the order dated 13.12.2019 by which the appellant was sentenced to undergo simple imprisonment for a period of four months and was directed to pay compensation of Rs.15,00,000/- to the complainant / respondent no. 2 within a period of 30 days. It was further directed that in default of payment of compensation, the appellant will undergo further simple imprisonment for a period of two months.
2. Brief facts leading to the filing of the present appeal are that on 20.03.2015 the complainant C.S. Muraleedharan filed CC No. 9785/2015 (renumbered as CC NO. 54315/2016) under section 138 of the NI Act stating that he came into contact with the appellant in 2003-2004 who was a Chartered Accountant and offered his services to the complainant. It is stated that the professional relationship between them became a friendly relationship and both started sharing office space. In 2011, the complainant sold his house in Mayur Vihar from which he got a respectable sum of money. He also received retiral benefits from his erstwhile employer and also from Insurance Policy of his wife who had passed away. It is stated that the appellant and wife of the appellant being aware of the savings of the complainant requested him for a loan of Rs.10,00,000/- with a promise to return the same by the end of the year. The appellant transferred Rs.10,00,000/- in favour of wife of the appellant and by the end of 2011, the wife of the appellant returned Rs.7,00,000/- to the complainant and sought one month's time to return the balance amount of Rs.3,00,000/-. The complainant has stated that instead of repaying the balance amount, the appellant and his wife requested for a further loan of Rs.7,00,000/- and offered to pay interest @ 1.8 % per month to him. The complainant has stated that the appellant and his wife paid interest till April, 2014 after which they stopped making payments. The appellant stated to the CA No.9/2020 Kumar Gorave Vs State & Ors Page No.2/19 complainant that he had suffered a loss and due to which he was unable to make payments. It is stated by the complainant that when he did not receive interest even after three months, he thought something was wrong and tried to contact the appellant but the appellant started avoiding his calls. In November, 2014, after a lot of efforts of the complainant, appellant met him and assured to clear the loan. It was mutually agreed between the complainant and the appellant that Rs.10,00,000/- would be paid by the appellant as lump sum towards the outstanding including interest against the loan of Rs.10,00,000/-. Towards the said settlement, the appellant issued cheque no. 043129 drawn on ICICI Bank, Laxmi Nagar from the joint account of appellant and his wife for Rs.10,00,000/- to the complainant with the assurance that it will be honoured upon presentation. The said cheque upon presentation was returned dishonoured through his banker with remarks "funds insufficient" vide return memo dated 09.1.2015. The complainant sent a notice dated 06.02.2015 calling upon appellant to make payment of the cheque amount. Despite service of the said notice, appellant failed to do so. The complainant therefore filed the present complaint for the offence under section 138 of the N.I. Act.
3. It may be noted that initially, the complaint had been filed against two accused persons namely Parul Sangal (wife of Kumar Gorave) and Kumar Gorave.
4. The Ld. Trial Court by order dated 10.07.2015 took cognizance of the offence, recorded pre-summoning evidence of the complainant by way of affidavit and summoned the appellant for the offence under section 138 of the NI Act. The appellant appeared before the Ld. Trial Court and was granted bail.
CA No.9/2020 Kumar Gorave Vs State & Ors Page No.3/195. On 21.04.2016, the Ld. Trial Court discharged accused Parul Sangal from the complaint as the cheque in question had been issued from a joint account of Parul Sangal and Kumar Gorave but the cheque had the signatures of only Kumar Gorave.
6. Notice under section 251 of the Cr.P.C. in respect of the offence under section 138 of the NI Act was framed against the appellant on 15.07.2016 to which he pleaded not guilty and claimed trial. In response to the questions by the Court, the appellant stated that the cheque in question had his signatures, name of his bank account and that he himself had filled the column of amount in words and figures but did not fill the remaining contents. He denied having received the legal notice and stated that he knew the complainant through a common friend Vikas Garg. He denied having taken any loan from the complainant and stated that he had no liability towards the complainant. Appellant has also stated that he used to share the same office with the complainant and 'he is likely' to have taken the cheque in question from his office.
7. The appellant moved an application under section 145 (2) of the N.I. Act which was allowed by the Ld. Trial Court by order dated 15.07.2016 granting opportunity to the appellant to cross-examine the complainant.
8. The complainant had examined himself as CW1, Ms. Mariamma Babu as CW-2 and Sh. Vikas Garg as CW-3 after which he closed his evidence.
9. On 21.02.2019 statement of the appellant was recorded under section 313 of the Cr.PC. In response to the questions / evidence put to him, the appellant CA No.9/2020 Kumar Gorave Vs State & Ors Page No.4/19 admitted having signed the cheque in question and filled the amount in words and digits but stated that remaining contents were not filled by him. He denied having given the cheque to the complainant and reiterated that he was sharing his office space with the complainant and apprehended that the complainant might have stolen his cheque and misused the same. He has stated that he had various money transactions with the complainant through cheque only and had returned the due amount to the complainant at various occasions through cheque only. He stated that there may have been some outstanding amount of Rs. 2,00,000/- to Rs. 2,50,000/- on either party. He stated that he had never taken any money in cash from the complainant. He admitted his signature on the loan agreements Ex.CW1/X2 to Ex.CW1/X5. Appellant had stated that despite the said agreement complainant did not pay any amount but on the other hand the appellant had paid Rs.6,00,000/- through cheque to the complainant on 19.04.2011 and also paid Rs.10,00,000/- through cheque to the complainant on or about 30.05.2014. The cheque in question were from the cheque book issued in 2011- 20. The cheques mentioned in the loan agreement were never been presented by the complainant and the agreement had never been acted upon. The appellant wanted to lead evidence in his defence.
However, appellant failed to lead any evidence in defence and his right to do so was closed on 11.04.2019.
10. The Ld. Trial Court after considering the evidence on record and submissions of the Ld. Counsel for the parties convicted and sentenced the appellant by the impugned orders in the manner as recorded above.
11. Before this Court Sh. Prashant Menhdiratta, Ld. Counsel for the appellant has submitted that three complaint cases were filed by the complainant CA No.9/2020 Kumar Gorave Vs State & Ors Page No.5/19 against the appellant before the Ld. Trial Court and identical evidence was recorded in all three complaint cases. The Ld. Trial Court acquitted the appellant in two cases but convicted the appellant in the present case despite evidence in all three cases being the same. He submitted that the appellant had questioned the complainant regarding the financial transactions i.e. giving of alleged loan. The appellant during the course of his cross-examination on 03.05.2017 produced Bank Account Statements which were exhibited as Ex.CW1/X1 (colly). It was submitted that the said Bank Account Statements were not supported by any certification either under section 65 B of the Indian Evidence Act or under section 2A of the Bankers Books Evidence Act. He submitted objection in this regard was duly recorded by the Ld. Trial Court in the cross-examination sheet recorded on 03.05.2017 but in spite of the same, the appellant did not produce any such certification during the subsequent course of the proceedings before the Ld. Trial Court. Sh. Prashant Menhdiratta, Advocate submitted that the Ld. Trial Court in para no. 13 of the impugned order read the said bank statements in evidence holding that as the same were obtained in the course of e-banking / online banking transactions they did not require any certification under section 65 B of the Indian Evidence Act. Sh. Prashant Menhdiratta, Advocate submitted that there is nothing on the record which can lead to an inference that the said bank statements were downloaded by the complainant through online banking transactions. He further submitted that even if the same were downloaded through online banking, the same being sourced through a computer output would require a certificate of the appropriate either under section 65B of the Indian Evidence Act or section 2A of the Bankers Books Evidence Act, in the absence of which it could not be read in evidence.
CA No.9/2020 Kumar Gorave Vs State & Ors Page No.6/1912. Sh. Prashant Menhdiratta, Ld. Counsel for the appellant has further submitted that the admittedly both the appellant and the respondent were using common office space. The cheque in question did not bear any name and the appellant stole and misused them for filing this false complaint. He further submitted that although the complainant in his complaint stated that he had advanced a loan to the appellant, he failed to mention the dates on which he gave the alleged loans and the mode i.e. either cash or cheque and also to whom i.e. whether to the appellant or his wife. He further submitted that the appellant has not mentioned the date on which the wife of the appellant returned Rs.7,00,000/- or the date on which further loan of Rs.7,00,000/- was sought and given. He submitted that the complaint in fact does not state that further loan of Rs.7,00,000/- was given by the appellant to the complainant. It was submitted that the appellant had denied taking any loan from the complainant or having any liability towards him and thus onus was on the complainant to prove the loan and his capacity to give the same. It is submitted that in cross-examination on 13.09.2017 the complainant admitted that his bank account statements did not reflect sufficient money for giving the loan. Suggestion had been given to the complainant in cross-examination that he had stolen the cheque in question. It is submitted that in the impugned order the Ld. Trial Court has observed that onus was on the appellant to give rise to a probable defence even though the complainant had admitted that he did not have the money to pay the loan. He submitted that the Ld. Trial Court has further observed that the evidence on the record gave rise to two possible views but proceeded to convict the appellant despite it being settled law that in criminal matters, the view in favour of the person accused is always to be taken. Reliance was placed by Ld. Counsel for the appellant on the following case law:-
(i) Om Prakash & Others Vs. CBI reported in Manu/DE/2619/2017 CA No.9/2020 Kumar Gorave Vs State & Ors Page No.7/19
(ii) John K. Abraham Vs. Simon C. Abraham reported in 2014 (2SCC
236)
13. On the other hand, Sh. Harpreet Singh Uppal, Ld. Counsel for the respondent / complainant had submitted that the impugned order does not call for any interference. He submitted that it was improbable on the part of the appellant to have kept a signed cheque with the amount written down in words and figures. He submitted that the appellant had falsely claimed that the cheque in question was stolen by the complainant. He submitted that any ordinary person would take recourse to legal proceedings in a situation whether a cheque has been stolen but in the present case appellant has not filed any complaint / FIR in respect of the same. He submitted that the appellant has taken shifting stands at the stage of framing of notice under section 251 of the Cr.P.C. and recording of his statement under section 313 of the Cr.P.C. He submitted that the appellant had admitted several financial transactions with the complainant and had also claimed in his statement under section 313 of the Cr.P.C that he had paid several amounts to the complainant and that there was nothing due but the appellant did not lead any evidence in this regard. He submitted that the appellant did not enter the witness box to prove his defence.
14. Sh. Harpreet Singh Uppal, Ld. Counsel for the respondent / complainant has further submitted that emails Ex. CW1/1 duly supported with a certificate under Section 65B of the Evidence Act of the complainant clearly reflected the transactions between the parties and the liability of the appellant. He submitted that the Ld. Trial Court had rightly held that the bank account statements Ex.CW1/X1 (colly.) produced by the complainant during his cross-examination did CA No.9/2020 Kumar Gorave Vs State & Ors Page No.8/19 not require any certification under section 65B of the Evidence Act as they were downloaded directly by using online e-banking. He submitted that even if the said document was not available / produced, the facts of the present case reveal that the appellant had not been able to dislodge the presumption which arose against him under section 139 of the NI Act after having admitted his signatures on the cheque in question. He submitted that it is only after a probable defence is raised by the person accused that the onus to prove financial capacity shifts upon a complainant. In the present case since the appellant was unable to dislodge the said presumption, the onus to prove financial capacity and the loan transactions did not shift upon the complainant. Written submissions have been filed in addition to oral submissions. Reliance was placed Harpreet Singh Uppal, Ld. Counsel for the respondent / complainant by on the following case law:-
(i) Bonanza Portfolio Ltd Vs. State of Assam and Others - 2015 Legal Eagle (GAU) 99.
(ii) D.K. Chandel Vs. Wockhardt Ltd. and Others -Manu/SC/0336/2020
(iii) G.L. Sharma Vs. Hemant Kishor -Manu/DE/0096/2015
(iv) Kalamani Tex & Ors. Vs. P. Balasubramanian Crl. Appeal No. 123 of 2021 decided on 10.02.2021
(v)Rohitbhai Jivanlal Patel vs. State of Gujrat (2019) 18 SCC 106
(vi) Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197
(vii) Manoj Jain vs. Anand Kumar Jain LNIND 2015 DEL 3978
(viii) Sanjay Arora vs. Monika LNIND 2017 DEL 2050
(ix) Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16
(x) Kusum Ignots & Alloys Ltd. vs. Pennar Peterson Securities Ltd. (2000) 2 SCC {LNIND 2000 SC 362}
(xi) Col. (Retd.) H.C. Goswami vs. State of Delhi & Anr. WP (Crl) 949/2009 decided on 18th May, 2017
(xii) Rangappa vs. Sri Mohan (2010) 11 SCC 441
(xiii) Goaplast (P) Ltd. Chico Ursula D'Souza (2003) 3 SCC 232
(xiv) M.M.T.C. Ltd. & Medehl Chemicals & Pharma (P) Ltd. (2002) 1 SCC 234
(xv) Bharat Barrel & Drum Mfg. Co. vs. Amin Chand Pyarelal (1999) 3 SCC 35 CA No.9/2020 Kumar Gorave Vs State & Ors Page No.9/19 (xvi) Mallavarappu Kasivisweswara Rao vs. Thadikonda Ramulu Firm (2008) 7 SCC 655
15. I have heard the Ld. Counsel for the parties and have perused the record of the Ld. Trial Court. I have also carefully gone through the written submissions filed by the Ld. Counsel for the parties.
16. The stand taken by the appellant at the stage of framing of notice under section 251 Cr.PC as well as at the stage of recording of statement of accused under section 313 of the CrPC is that no loan was taken and there was no outstanding liability on his part. During cross-examination, the appellant has questioned the financial capacity of the complainant regarding payment of the loans as well as proof of the transactions themselves. During the course of cross- examination on 03.05.2017 the complainant produced statements of certain bank accounts which were exhibited as Ex. CW1/X1 (colly.). The following is recorded by the Ld. Trial Court in the cross-examination sheet on 03.05.2017 in respect of the same: -
" I have brought my bank account statement today and the same is Ex. CW1/X-1 (colly, running into 43 pages). [The exhibiting of bank account statement of the complainant is strongly objected to by counsel for the accused stating that no certificate under section 65B of the Indian Evidence Act has been attached with the account statement].
I am also filing today a certificate under section 65B of Indian Evidence Act with respect to document Ex. CW1/1 (colly.) being the emails exchange between the parties and the tracking reports of the India Post & the courier already on record with respect to service of legal demand notice upon the accused.
Further cross-examination is deferred at the request of counsel for the accused."CA No.9/2020 Kumar Gorave Vs State & Ors Page No.10/19
17. As apparent, the complainant produced statements of his bank accounts in support of his contention that loan had been advanced by him to the appellant and that the same had not been repaid. Objection had been taken by the appellant regarding admissibility in evidence of the said documents on the ground that the same were not supported by any certificate under section 65B of the Evidence Act. Despite the said objection having been taken, the complainant did not produce any such certificate at any subsequent stage of the proceedings. It is to be noted that the complainant did produce a certificate under section 65B of the Evidence Act in support of emails Ex. CW1/X1 (colly.) on which he relied upon. Complainant was thus aware of the provisions of Section 65B of the Evidence Act.
18. The Ld. Trial Court in para 13 of the impugned judgment dated 07.12.2019 has referred to the bank account statements Ex. CW1/X1 (colly.). With respect to the requirement of a certificate under section 65B of the Evidence Act in support of the said document, the Ld. Trial Court in para 13 of the impugned order has held as under :-
"Since these are the e-bank account statement these document does not require certificate of 65B because these statements were not stored in any computer rather these were downloaded directly by using online banking."
19. After holding as above, the Ld. Trial Court went on to look into the said bank account statements Ex. CW1/X1 (colly.) to find that Rs.10,00,000/- was credited in the account of the wife of the appellant on 03.08.2011; an amount of Rs.9,00,000/- was credited in the account of the appellant on 29.08.2011; Rs.7,00,000/- was deposited in the account of the complainant on 12.12.2011 (two deposits of Rs.2,00,000/- and Rs.5,00,000/-); Rs.7,00,000/- was credited in the CA No.9/2020 Kumar Gorave Vs State & Ors Page No.11/19 account of the wife of the appellant on 20.01.2012. On the basis of the bank account statements, the Ld. Trial Court has found that Rs.19,00,000/- had been paid by the complainant to the appellant and his wife and thus the said statements were sufficient to show that money was advanced to the appellant. On the basis of the same statements the Ld. Trial Court has also found that Rs.6,00,000/- was deposited in the accounts of the complainant on 19.04.2011 and a further amount of Rs.10,00,000/- was deposited on 30.05.2014 in the accounts of the complainant by the appellant. The Ld. Trial Court held that the appellant had not clarified as to against which liability the said deposits were made and it was possible that the payments might have been made against some other transactions and thus both views were possible. The Ld. Trial Court went on to conclude that no payments were made to the complainant qua the loan transaction in question.
20. On the other aspects, the Ld. Trial Court has found that the appellant was unable to provide any credible explanation as to why he had kept signed cheques with amounts filled in his office and that no action was taken by the appellant regarding misplacing of the cheque in question which gave rise to a doubt on the defence of the appellant.
21. On such findings, the Ld. Trial Court held that the appellant failed to rebut the presumptions under section 139 of the NI Act and was liable to be convicted for the offence under section 138 of NI Act.
22. The primary contention of the Ld. Counsel for the appellant was that the bank account statements in question i.e. Ex. CW1/X1 (colly.) could not have been read in evidence in the absence of a certificate of the appropriate authority CA No.9/2020 Kumar Gorave Vs State & Ors Page No.12/19 under Section 65B of the Evidence Act. The Ld. Trial Court has rejected the said contention holding that the bank account statements Ex. CW1/X1 (colly.) "were not stored in any computer rather these were downloaded directly by using online banking". The finding of the Ld. Trial Court that the said documents were 'downloaded by directly using online banking is not borne out by any material on the record of the Ld. Trial Court. There is nothing on the record of the Ld. Trial Court, either in the form of a document or any statement of the complainant, to give rise to the inference that it was sourced through online banking.
23. Even if the bank account statements Ex. CW1/X1 (colly.) had been sourced through online banking and downloaded by the complainant, the bank account statements as such would originate from the computerized data management system of the concerned bank maintained in a computer system or computer network. Any customer seeking a statement of his account through online banking would have to access the computer system or computer network of his bank as the statement of account would be maintained and stored in the same.
24. Whichever way one looks at it, bank account statements Ex. CW1/X1 (colly.) are nothing but "information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media pro- duced by a computer (hereinafter referred to as the computer output)" within the meaning of section 65B(1) of the Evidence Act and in order that the same be ad- missible in evidence, it will require to be supported by a certificate of the appropri- ate authority under section 65B(4) of the said Act.
CA No.9/2020 Kumar Gorave Vs State & Ors Page No.13/1925. In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal re- ported in (2020) 7 SCC 1, decided on 14.07.2020, a three Judge Bench of the Hon'ble Supreme Court was pleased to answer a reference regarding the position of law relating to the interpretation of Section 65-B of the Evidence Act, 1872. The relevant portion of the order recording the terms of reference is as under: -
"IA No. 134044 of 2019 for intervention in CAs Nos. 20825-26 of 2017 is allowed.
2. These civil appeals have been referred to a Bench of three Hon'ble Judges of this Court by a Division Bench reference order dated 26-7-2019 1, dealing with the interpretation of Section 65-B of the Evidence Act, 1872 ("the Evidence Act") by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer2 (a three-Judge Bench decision of this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of H.P.3 may need reconsideration by a Bench of a larger strength."
26. After considering the law on the subject matter of the reference, the Hon'ble Supreme Court proceeded to hold and observe as under: -
"73. The reference is thus answered by stating that:
73.1. Anvar P.V.2, as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno7, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad3 and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.8, do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens CA No.9/2020 Kumar Gorave Vs State & Ors Page No.14/19 to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V.2 which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified;
it is to be read without the words "under Section 62 of the Evidence Act,...". With this clarification, the law stated in para 24 of Anvar P.V.2 does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers."
(emphasis supplied)
27. The Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) has been pleased to settle the law in respect of admissibility of electronic record in evidence and the correct interpretation of Section 65-B of the Evidence Act. It has been held that: -
If the original digital device in which original information is first stored is physically produced in court with its owner / operator stepping into the witness box, no certificate under Section 65-B(4) is necessary as the original document itself stands is produced in the court, but If the original digital device in which original information is first stored is part of a "computer system" or "computer network" incapable of being physically produced before the court, the only way of proving the said information is in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4).CA No.9/2020 Kumar Gorave Vs State & Ors Page No.15/19
28. While coming to its conclusions, the Hon'ble Supreme Court was pleased to reiterate that non production of a certificate under section 65B of the Evidence Act is a curable defect. If an objection is taken to electronic record being marked in evidence without such a certificate, the Court should give an opportunity to rectify the deficiency. The Court may in appropriate cases allow production of the certificate at a later point in time. The Hon'ble Supreme Court was also pleased to refer with approval to para 50 of the judgment of Hon'ble Delhi High Court in the case of Kundan Singh Vs. State (2016) 1 DLT (CRI) 144 in which the Hon'ble High Court was pleased to hold that such a certificate can be produced in exercise of powers of the Trial Court under section 311 Cr.P.C or at the appellate stage under section 391 of the CrPC as the evidence act is a procedural law and that it was opened to the court to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of section 65B. The Hon'ble Supreme Court also observed that so long as hearing in a trial is not over, the requisite certificate can be directed to be produced by the Ld. Judge at any stage.
29. In the present case, the original information in respect of the bank account statements Ex. CW1/X1 (colly.) will be contained in the "computer system" or "computer network" of the concerned bank. It is nobody's case that any original digital device of the bank in which the bank account statements Ex. CW1/X1 (colly.) were first stored was physically produced before the Ld. Trial Court. As clarified by the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra), the only legally admissible manner in which the same could be produced before the Court would be in CA No.9/2020 Kumar Gorave Vs State & Ors Page No.16/19 accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4) Evidence Act of the concerned bank official.
30. Therefore in the absence of any certificate of the concerned authority under Section 65B(4) of the Evidence Act, the bank account statements Ex. CW1/X1 (colly.) were inadmissible in evidence. The same could not have been looked into by the Ld. Trial Court for any purposes whatsoever.
31. Sh. Harpreet Singh Uppal, Ld. Counsel for the respondent / complainant had submitted that in the absence of the bank account statements Ex. CW1/X1 (colly.), the appellant had not been able to dislodge the presumptions under section 139 of the NI Act. He relied on the case of Kalamani Tex & Ors. Vs. P. Balasubramanian (supra) in which the Hon'ble Supreme Court while referring to its observations in the case of Rohitbhai Jivanlal Patel v. State of Gujarat (supra) had been pleased to reiterate that "unless the accused discharges the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan..".
32. The facts of the case as stated by the complainant in his complaint have been noted. The complainant has not mentioned the date and mode of payment of Rs.10,00,000/- (as referred in para 5 of the complaint). Complainant has not mentioned the date and mode by which the wife of the appellant returned Rs.7,00,000/- (as referred in para no.7 of the complaint). He has also not mentioned specifically payment of further amount of Rs.7,00,000/- to the appellant CA No.9/2020 Kumar Gorave Vs State & Ors Page No.17/19 (although there is reference regarding the said transaction in paras 8 to 10 of the complaint). Coupled with these facts the appellant had questioned giving of the loan itself and the financial capacity of the complainant to have done so. In such circumstances, in the opinion of this court, the onus fell upon the complainant to produce material regarding the loan transaction and it was probably for this reason that the complainant produced his bank account statements Ext. CWI/XI (colly.). I am therefore not in agreement with the submission of the Ld. Counsel for the appellant that that even the absence of the said bank account statements, the appellant had not been able to dislodge the statutory presumptions.
33. Since the finding of guilt against the appellant has been arrived at by the Ld. Trial Court on the basis of the bank account statements Ex. CW1/1 (colly.), the same cannot be sustained. Hence for the reasons recorded above, the impugned order of conviction dated 07.12.2019 and the impugned order dated 13.12.2019 on sentence are set aside.
34. However, as recorded above, the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) has been pleased to hold that non production of a certificate under section 65B of the Evidence Act is a curable defect and an opportunity should be given to cure the same. Such a certificate can be produced in exercise of powers of the Trial Court under section 311 of the CrPC or at the appellate stage under section 391 of the CrPC.
35. Even though the Ld. Counsel for the respondent/complainant did not make any submission /prayer or application before this court for being permitted to CA No.9/2020 Kumar Gorave Vs State & Ors Page No.18/19 file a certificate at the appellate stage despite the judgment of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) having been discussed during the course of arguments and put to him, this Court deems it fit, in the interest of justice, to remand the matter to the Ld. Trial Court to the stage at which the statement of account Ex. CW1/X-1 (colly.) was produced during the cross-examination of complainant. The Ld. Trial Court shall grant an opportunity to the complainant to produce a certificate of the appropriate authority under section 65B of the Evidence Act in support of the statement of accounts marked as Ex. CW1/X-1 (colly.), permit further cross-examination of the complainant restricted however in respect of such certificate if produced, and then to decide the complaint afresh in accordance with law.
36. Appeal disposed of in the above terms. File be consigned to record room. Trial court record be sent back alongwith copy of this order.
Digitally
signed by
REETESH
REETESH SINGH (Reetesh Singh)
SINGH Date:
ASJ-2/KKD/East/26.07.2021
2021.07.26
16:04:51
+0530
Announced in open
court on 26.07.2021
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