Delhi District Court
Sh. Yoginder Mugrai S/O Sh. Dharambir ... vs Sh. Pradeep Garg S/O Sh. M.C. Garg on 29 April, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURTS: DELHI
Complaint No.4191/07
PSAnand Vihar
Sh. Yoginder Mugrai S/o Sh. Dharambir Mugrai,
R/o 4/1904, Street No.5,
Rama Block, Bhola Nath Nagar,
Shahdara, Delhi110032. .............. Complainant
Versus
Sh. Pradeep Garg S/o Sh. M.C. Garg
R/o A102, 2nd Floor,
Yojna Vihar, Delhi 110093. ................ Accused
Offence complained of u/s. 138 Negotiable Instruments Act
Plea of accused Not guilty
Complaint filed on 14.01.2003
Final arguments heard on 19.04.2010
Date of decision 29.04.2010
Decision Acquitted
J U D G M E N T :
1.Present complaint has been filed against the accused alleging that the accused has issued a cheque no.334075 dated 21.11.02 for Rs.50,000/ drawn on Punjab National Bank, Radhey Puri, Arjun Nagar Branch, Delhi but same was dishonored on presentation with the bank due to reason 'account closed' vide memo dated 28.11.02. The accused had issued the aforesaid cheque despite knowing the fact that there was no sufficient CC no.4191/07 Page No: 1/6 amount in his account and he had already closed the account. Notice dated 04.12.2002 was sent to the accused vide registered A/D and UPC, but despite service of the notice, accused has failed to pay any amount within 15 days or till date, hence the present complaint.
2. Accused was summoned and was explained notice of accusation on 19.02.05, to which he pleaded not guilty.
3. Complainant examined himself in support of his case. Thereafter, accused was examined U/S 281 Cr.P.C. on 07.08.2008. Accused examined one witnesses namely Sh. Ashish Ticku in support of his defence.
4. Both parties made their rival arguments. I have given due consideration to the contentions made before me and perused the record of this case.
5. Accused has taken defence that he does not know complainant and he had no transaction with the complainant. He has also taken defence that cheque in question was not given to the complainant. It was given to one Mr. I.K. Tikku, who was at that time would be fatherinlaw of his daughter.
The cheque was given to him to make certain arrangement for the purpose of marriage of his daughter with his son. He has further pleaded that Mr. Tikku expired in December 2002.
6. From the perusal of complaint, legal notice sent to the accused as well as affidavit of the complainant, I find that complainant has not mentioned at all the nature of liability of the accused. He has not disclosed that what CC no.4191/07 Page No: 2/6 was the kind of liability upon the accused, for discharge of which the cheque in question was issued by the accused. He has not disclosed single fact in respect of any transaction between him and the accused. For the first time in his cross examination, he deposed that accused had taken a loan from him. Simplicitor a bald statement given in cross examination is not sufficient to establish the transaction with the accused.
7. In P. Venugopal. Vs. Madan P. Sarathi 2009 (1) Civil Court Cases 054 (SC) in paragraph 16 of the judgment, Hon'ble Supreme Court has observed as under:
"Indisputedly, in view of the decisions of this Court in Krishna Janardhan Bhat (supras), the initial burden was on the complainant. The presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In a case of this nature, however, it is essentially a question of fact."
8. I would also like to refer the judgment of Hon'ble Supreme Court in M/s. Kumar Exports Vs. M/s. Sharma Carpets2009(1) R.CR.(Crl) 478.
In this case, Hon'ble Supreme Court has explained in detail the scope of Section 118 and Section 139 N.I. Act. The relevant observations made therein are as follows: "11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, CC no.4191/07 Page No: 3/6 makes it at once clear that presumptions to be raised under both the provisions are rebuttable. 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 nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also CC no.4191/07 Page No: 4/6 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 an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
9. In this case, it was onus of the complainant to disclose the relevant fact pertaining to transaction with the accused. He has not disclosed any such fact. In these circumstances, it cannot be expected from the accused to lead any negative evidence. When complainant did not disclose any fact pertaining to the transaction with the accused, then the accused had no occasion to rebut or to disprove such fact. The denial of the accused having any transaction with complainant assumes importance here. From the evidence of complainant, I do not find that complainant has either explained or proved the liability of the accused. Issuance of a cheque in itself is not a proof of being under a liability to discharge legally recoverable debt. In these circumstances, I find that complainant has miserably failed CC no.4191/07 Page No: 5/6 to establish the liability of the accused and therefore any assumption of guilt of the accused cannot be raised by this court. Hence complaint is dismissed.
10. Accused is acquitted of charge for the offence punishable u/s.138 Negotiable Instrument Act. Surety stands discharged.
11. File be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA) Court on 29.04.2010 CCJ/ARC(EAST)/MM (contain 6 pages only) KARKARDOOMA COURTS: DELHI CC no.4191/07 Page No: 6/6