Delhi District Court
Rajesh Kumar Goyal vs Prithvi Raj Rewari on 31 August, 2024
UNIQUE QR CODE:
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS
N.I. ACT, (DIGITAL COURT NO. 03) (CENTRAL)
TIS HAZARI COURTS : DELHI
Presiding Officer: Ms. Meena Chauhan, DJS
CC NI ACT No. 602/2021
Rajesh Kumar Goyal vs. Prithvi Raj Rewari
U/s 138 Negotiable Instruments Act
PS: Karol Bagh
JUDGMENT
a Case Number Record(CNR) : DLCT020011342021
b Date of dishonour of cheque : 17.11.2020
c Date of institution of case 18.01.2021
Rajesh Kumar Goyal S/o Sh. R.D.Goyal
d Name of the Complainant : R/o 3613/12, Reghar Pura, Karol Bagh,
Delhi-110005
Prithvi Raj Rewari S/o Sh. Devi Dayal
Rewari R/o Flat no. 253, Canara
e Name of Accused :
Apartments, Sector-13, Rohini, Delhi-
110085
f Offences complained of : U/s 138 Negotiable Instruments Act
g Plea of the Accused : Pleaded not guilty.
h Arguments concluded on 16.08.2024
i Final Order : Acquittal
j Date of Final Order : 31.08.2024
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 1 OF 23
It is the spirit and not the form of law that keeps justice alive.
-Earl Warren Brief statement of reasons for the decision
1. Vide this judgment, I shall dispose off the present complaint filed by the complainant alleging the commission of offence punishable U/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the "NI Act").
Brief Facts:
2. The criminal complaint under Section 200 of The Code of Criminal Procedure, 1973 (In short 'Cr.P.C.') is filed by the complainant Mr. Rajesh Kumar Goyal (Hereinafter referred to as 'the complainant') under Section 138 of the NI Act against the accused Mr. Prithvi Raj Rewari (Hereinafter referred to as 'the accused'). The complainant averred that the complainant and the accused were previously known to each other and given the financial necessities of the accused, the accused approached the complainant for help. During July, 2018 to November 2018, the complainant advanced an amount of Rs. 8,00,000/- at the interest of 12% per annum to the accused in numerous installments, as required by the accused. In discharge of his liability, the accused issued five post-dated cheques including three cheques of this case, i.e., Cheque No. 063409 amounting to Rs. 2,00,000/-, Cheque No. 063410 amounting to Rs. 2,25,000/- and Cheque No. 113742 amounting to Rs. 75,000/- all dated 04.11.2020 drawn on Canara Bank Shashtri Nagar, CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 2 OF 23 Delhi-110052 in favour of the complainant. On presentation of the cheques by the complainant for encashment to his banker, all three cheques were returned unpaid with the remark 'Funds Insufficient' vide separate bank memos all dated 18.11.2020. The legal demand notice dated 01.12.2020 was sent to the accused through Regd. AD and despite receipt of demand notice, the accused failed to make payment of the cheque amount. Hence, the complainant filed the complaint case under Section 138 NI Act.
Summoning Order:
3. Ld. Predecessor of this court, vide order dated 11.02.2021, cognizance of offence was taken and the accused was summoned for offence under Section 138 of NI Act.
Notice of Accusations under Section 251 Cr.P.C.:
4. On 24.03.2021, upon the appearance of the accused, he was admitted to bail.
On 28.08.2021, the substance of accusations were explained to the accused, as required under Section 251 Cr.P.C., to which he pleaded not guilty and raised his defence as under:
"I know the complainant since 1991 through a mutual friend. I tool (took) financial assistance from the accused in the year 2015-16 for which I issued 5 security cheques to the complainant. I had returned Rs. 6 lacs to the complainant from August 2018 till December 2018 when his daughter was getting married. That time despite my repeated requests, the complainant did not return the said cheques. Now, he has filed the present complaint case and another complaint case pending in Court of Ms. Akriti Mahendru, MM (NI Act), Digital Court 01, Central, THC. Presently, I only owe the complainant Rs. 2,00,000/-
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 3 OF 23 for which I had issued him cheque no.000256 which is one the impugned cheques in the other matter."
5. Upon an application U/s 145(2) NI Act moved on behalf of the accused and considering the ground of defence, the accused was allowed to cross- examine the complainant and the trial was converted from summary to a summons case.
Complainant's Evidence:
6. The complainant appeared as CW1. He tendered his examination-in-chief by way of affidavit, Ex.CW1/X. He relied on the impugned cheques Ex.CW1/1 to Ex. CW1/3, Cheque returning memos all dated 18.11.2020 Ex.CW1/4 to Ex.CW1/6, Legal demand notice dated 01.12.2020 Ex.CW1/7, postal receipts Ex.CW1/8 and copy of his bank account statement Ex.CW1/9. As no other witness was examined, the complainant's evidence was closed.
7. During cross-examination, CW1 revealed that his monthly source of income was about Rs.70,000/- at the time of advancement of loan to the accused. The loan was disbursed in cash between July 2018 to November 2018, he showed his forgetfulness as to the exact date and exact amounts given to the accused on various occasions. He deposed that Rs. 7.5 lacs was withdrawn from his account during the period of July 2018 to November 2018 and remaining amount was arranged from his savings. He affirmed that he, being an Income Tax payee, had disclosed the loan amount in his ITR of the relevant period as well as in his balance sheet. The suggestion as to his daughter's marriage in December 2018 was admitted, however, total CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 4 OF 23 expenses borne by him during the said time was about Rs. 2 to 4 lacs as deposed. He denied the suggestions that he did not advance the alleged loan during July 2018 to November 2018 as alleged by him, that his daughter's marriage was finalized in June 2018, that the aforesaid amount was withdrawn from his bank for the purpose of his daughter's marriage and that impugned cheques, except Cheque No. 000256, were given in the year 2015- 2016.
8. CW1 also deposed that the impugned cheques were given in October, 2020 , not at the time of advancement of loan due to the old relations between the parties. Suggestion of the repayment of Rs. 6 lacs at the time of the marriage of the complainant's daughter, Rs. 2 lacs each in the month of August, October and December and as to the remaining liability of Rs. 2 lacs on the accused was put to the witness, however denied by CW1. Also, CW1 denied that requests for return of cheques were also raised by the accused and that dates on the impugned cheques were filled by the complainant. CW1 admitted that no written document executed for the alleged transaction. Complainant showed his ignorance as to the date of handing over of impugned cheques.
Examination under section 313 Cr.P.C.:
9. Incriminating circumstances appearing in the evidence were explained to the accused as required under Section 313 Cr.P.C. read with Section 281 Cr.P.C. to which he pleaded his innocence and reiterated the same defence as earlier taken.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 5 OF 23 Defence Evidence:
10.The accused examined himself as DW1 and examined Mr. Rajiv Ranjan, Tax Assistant, Income Tax Department. The accused relied upon a computer generated statement of his bank account, Ex. DW1/C1 and ITR of the complainant from the assessment years of 2018 to 2021, Ex. DW2/C1(colly) OSR. Defence Evidence was closed.
Contentions of the Complainant:
11.Written arguments are filed on behalf of the complainant. It is mentioned that the accused admitted taking financial assistance from the complainant, issuance as well as his signatures on the impugned cheques during notice framing U/s 251 Cr.P.C. Attention is also drawn to Ex. CW1/9 to establish the withdrawal of the amounts from the bank account of the complainant during the relevant time. It is contended that the ITRs as well as the balance sheet of the complainant was also exhibited on 29.08.2023.
12.It is further contended that there is no iota of evidence to substantiate the defence of the accused that he repaid Rs. 6 lacs in three equal installments to the complainant as there is no receipt/acknowledgement to this effect and the same is not reelected in Ex. DW1/C1. Reference was also made to the Recorded Audio chat of the parties dated 03.01.2020 along with transcript and certificate U/s 65 of Indian Evidence Act, Mark-A and Mark-B.
13.It is stated that all the essential requirements of section 138 NI Act have been fulfilled in the present complaint and statutory presumptions are to be CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 6 OF 23 raised in favour of the complainant. Since the defence of the accused is full of contradictions, the same deserved to be discarded and the accused is liable to be convicted under Section 138 NI Act. Several judgments are referred to in the written arguments filed by the complainant.
Contentions of the Accused:
14.Ld. Counsel for the accused questioned the financial capacity of the complainant to advance loan at the relevant time as alleged in the light of deposition of the complainant that his monthly income was about Rs. 70,000/- at that time. He also pointed out the ITRs of the complainant, Ex. DW2/1(colly), to state that the annual gross income of the complainant was only around Rs. 3 lacs during the relevant time and the alleged loan amount was not reflected in the ITRs. The judgment of Rajaram vs. Maruthachalam, criminal appeal no. 1978/2013 relied upon.
15.It is argued that the complainant could not state the exact dates of advancement of loan in the complaint or his evidence. No written document has been executed to this effect. Relied upon the judgment of Basalingappa vs. Mudibasappa, Criminal Appeal no. 636/2019.
16.Contrary to the case of the complainant, it was argued that the accused had repaid the Rs. 6 lacs during the period of July 2018 to November 2018 for the marriage of the complainant's daughter. Reliance was placed on the bank statement of the accused to also show that the accused had sufficient balance in his account at the relevant time.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 7 OF 23
17.It is further contended that the alleged loan was not advanced in the year 2018 and the impugned cheques were issued for security in the year 2015- 16, which has been misused by the complainant even after repayment of Rs. 6 lacs. Liability of Rs. 2 lacs is admitted one and for the said liability only a cheque no. 000256 was given by the accused in the year 2020.
Points of Determination:
18.The following points of arise in the present case:
➢ Whether the complainant has been successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
➢ If yes, whether the accused can be said to have discharged his 'evidential burden', that the presumption of law supplied by Section 139 had been rebutted?
Legal Position:
19.Prior to the appreciation of the facts, it would be apt to refer to the relevant law propositions. The essential ingredients for constituting the offence U/s 138 of NI Act are elaborated by Hon'ble Supreme Court of India in Kusum Ingots & Alloys Ltd & Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745 as follows:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 8 OF 23
(b) The cheque must be drawn for payment of a certain amount of money to another person to discharge in whole or in part, any legal enforceable debt or other liability.
(c) The cheque has been presented to the bank and is returned unpaid by the bank either due to insufficiency of funds or it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(d) The payee or the holder in 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 the stipulated period.
(e) The drawer fails to make payment within stipulated time after the receipt of the said notice.
20.Before proceeding further, it is pertinent to discuss two presumptions that are enumerated in the Act, while considering the offence envisaged U/s 138 of NI Act.
Section 139 of the Negotiable Instruments Act: "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, or any debt or other liability."
Section 118(a) of the Negotiable Instruments Act: "(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;"
21.The combined effect of Section 118(a) and Section 139 of NI Act is that it raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 9 OF 23
22.In Hiten P. Dalal Vs. Bratindranath Banerjee AIR 2010 SC 1898 it was held as under: − "The words 'unless the contrary is proved' which occur in this provision (Section 139) 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 the provision cannot be said to be rebutted......"
23.It is a well settled legal principle that in cases under section 138 NI Act, the complainant has to prove his case beyond a pale of reasonable doubt and the accused has to raise a defence on the yardstick of "preponderance of possibility". In other words, the 'legal burden' to prove the case always is on the shoulders of prosecution, however, the 'evidentiary burden' keeps on shifting during the trial.
24.Although, there is presumption in favour of the complainant that the promissory note is with consideration and the holder of the note received it for debt or liability, however, the 'existence' of such legally enforceable debt or liability is not presumed. Further, the said presumptions are also rebuttable either by way of direct evidence or by finding cavities in complainant evidence. The presumptions shall cease to exist when the contrary is proved by the accused. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 10 OF 23 [Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513 relied upon]
25.In order to rebut the presumption, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' in Section 139 do not mean that accused must necessarily prove the negative that the promissory note is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) and Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513 relied upon] The Analysis:
26.It is an admitted fact that the complainant and the accused have known each other for quite a long time. Further, the accused accepted that the impugned cheques were issued by him, all bearing his signatures and are filled by him except the date, it was drawn on an account maintained by the accused with a bank and the accused failed to make the payment of cheques in question after receipt of legal demand notice. The accused also does not dispute the receipt of legal demand notice Ex.CW1/7. The dishonour memo issued by the bank are on record and the same are Ex.CW1/4, Ex.CW1/5 and Ex.CW1/6. Hence, by virtue of section 146 of NI Act, the dishonour of cheque in question has to be presumed and the same stands proved. So, there is no need for discussion qua said ingredients and the same can be regarded CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 11 OF 23 as being duly proved on record and being non-controverted.
27.The accused has admitted his signature on the impugned cheque and the receipt of legal demand notice. Therefore, statutory presumptions under Section 118 (a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received it in discharge of an existing debt or other liability are drawn against the accused. The said presumptions are rebuttable in nature.
28.The onus is now upon the accused to disprove the liability as well as issuance of cheque to the complainant. [Judgment of The Hon'ble Supreme Court of India in M/s. Kalamani Tex vs. P. Balasubramanian (2021) 5 SCC 283 is relied upon] The accused is required to raise a probable defence and the standard of proof for displacing the presumption is preponderance of probability and not mere possibility. The accused can lead evidence or rely upon the evidence adduced by the complainant to show non-existence of a legally enforceable debt or other liability or want of consideration.
29.The case of complainant is that the loan of Rs.8 lakhs has been advanced to the accused during the period from July 2018 to November 2018 on different occasions for an interest rate of 12% per annum. The complainant examined himself as CW1 and reiterated the same version in his evidence. During cross-examination of CW1, he specified that the loan was given in cash by withdrawing an amount of Rs. 7.5 lakhs from his bank account and Rs.
50,000/- was given from his salary.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 12 OF 23
30.The first contention on behalf of the accused is that the complainant has advanced such a huge amount to the accused; however, neither the complainant stated the exact details of such a huge loan disbursement to the accused, nor is there any documentation of such a transaction as alleged. Even though the accused admitted the financial help given by the accused, he disputed that the same was given in the year 2018 as alleged by the complainant.
31.It is evident from the perusal of the complainant's evidence that it lacks the essential details of the purported loan transactions. The alleged loan amount around Rs. 8 lakhs granted to the accused is a substantial sum. The complaint as well as the examination-in-chief of CW1 are silent qua the specific dates of loan disbursement by the complainant on various occasions to the accused. Even when specifically asked to this effect during the cross- examination, the complainant showed his forgetfulness as to the date of advancement of loan to the accused, and also he could not remember the exact amount that was disbursed to the accused on several occasions during the months of July 2018 to November 2018. The deposition of the complainant seems dubious and lacks confidence. Seems relevant here to observe that the accused disputed his voice in the audio recording, Mark-A filed along with the transcriptMark-B, thus, the authenticity of the same remains not proved.
32.As corollary to the above discussion, it is significant to note that there is no CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 13 OF 23 written/documentary proof of advancement of loan of Rs. 8 lakhs by the complainant. In the matter titled John K. John v. Tom Varghese, 2007 (4) LRC 218 SC, the following observations were made by the Hon'ble Apex Court:
"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".
33.In a case titled Vijay v. Laxman, (2013) 3 SCC 86 by Hon'ble Supreme Court, it was observed that:
"In the first place the story of the complainant that he advanced a loan to the respondent accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had place. So much so, the complaint does not even indicate the date on which loan was demanded and advanced. It is blissfully silent about these aspects making the entire story suspect".
34.In the light of foregoing findings, it is evident that the case of the complainant is questionable due to the lack of documentary proof as well as the failure to cite the date of loan advancement in the complaint/evidence affidavit. And when the specific question was put to the complainant, he could not state the same. In such a scenario, not only the execution of the alleged transaction, i.e., the grant of a loan to the accused by the complainant, appears doubtful, but also the grant of a loan at the relevant time as alleged in the complaint seems suspicious.
35.Secondly, the accused has challenged the financial capacity of the complainant to give such a huge loan amount at the relevant period. The CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 14 OF 23 contention qua non-citation of the alleged loan in the complainant's ITR was also raised.
36.During cross-examination, CW-1 deposed that his monthly income was around Rs. 70,000/- during the year 2018 at the time of advancement of loan to the accused, and he had withdrawn a part amount of Rs. 7.5 lakhs from his bank and arranged Rs. 50,000/- from his savings. Even though, prima facie, the oral testimony of CW1 is corroborating with the copy of his bank account statement, Ex. CW1/9; however, further cross-examination of CW1 again makes the version of the complainant doubtful. On the one hand, CW1 affirmed that he used to file ITR, and he has also shown the alleged loan amount given to the accused in his ITR; on the other hand, the said ITRs were never exhibited by him during his entire evidence.
37.Contrary to the oral deposition of the complainant, DW2 Mr. Rajiv Ranjan, Tax Assistant, has filed the Income Tax Returns of the complainant for the assessment years, 2018-2019, 2019-2020, and 2020-2021, exhibited as Ex. DW2/1(colly) (OSR). The said documents remained unchallenged and, hence, admitted on behalf of the complainant. Ex. DW2/1(colly) indicates that the gross annual income of the complainant was around Rs. 3 lakhs during the said period. Additionally, the loan and advance columns are blank in two ITRs and one ITR reflects only Rs 17,000/-. Hence, there are ex-facie contradictions between the oral deposition of CW1 and documentary record Ex. DW2/1(colly), which further weakens the feeble case of the complainant. This discrepancy also strikes at the root of the complainant's CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 15 OF 23 case. The accused's contention that a reasonable person would not give away his entire earrings for loan advancement to others, also carries some weight.
38.Although the complainant provided a copy of his bank account statement (Ex. CW1/9) to demonstrate withdrawal entries during the relevant period for the alleged loan to the accused, he failed to provide a satisfactory explanation as to why the loan amount was not mentioned in his income tax return for the relevant assessment year.
39.In the case titled Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. AIR 2001 SC 676, it was well outlined that the object of Section 138 NI Act is to ensure the credibility of the cheque as a negotiable instrument for use in commercial transactions and to ensure that commercial and mercantile activities are carried out smoothly and healthily. This case holds significance as it highlights the importance of the provision in maintaining the integrity of commercial transactions.
40.In the judgment titled as Sanjay Mishra v. Ms. Kanishka Kapoor @ Nikki and Anr. 2009 CRI.L.J. 3777 it was held in paragraph 15:
"The Apex Court has held that the laws relating to the said Act are required to be interpreted in the light of the object intended to be achieved by it despite there being deviation from general law. The Apex Court expressed that the object of Section 138 of the said Act was to ensure that commercial and mercantile activities are conducted in smooth and healthy manner. The explanation to Section 138 of the said Act clearly provides that a debt or other liability referred to in section means a legally enforceable debt or other liability. The alleged liability to repay unaccounted cash amount admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to Section CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 16 OF 23 138 of the said Act nugatory. It will defeat the very object of Section 138 of the Act of ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of Section 138 cannot be resorted to for recovery of an unaccounted amount. A cheque issued in discharge of alleged liability of repaying "unaccounted" cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of Section 138 of the said Act. Such an effort to misuse the provision of Section 138 of the said Act has to be discouraged"
41.In paragraphs 7 and 13 of this case, it was held that if the complainant fails to show the amount allegedly owed by the accused in the income tax return, and the said amount is more than Rs. 20,000, it may be enough to challenge the presumption under Section 139 of the Act that the cheque was issued to settle a legally recoverable debt or liability.
42.In the present case, it is also clear from the evidence that the purported loan has not been disclosed to the income tax authority. Hence, on the facts presented by the complainant in his complaint and evidence it is clear that the money sought to be recovered in lieu of which the cheque in question was issued by the accused can not be said to be legally recoverable and hence the cheque issued can not be said to be issued towards the discharge of legally recoverable debt or liability.
43.The question of the legally recoverable cheque has to be considered in the light of the object of enactment of Sec. 138 NI Act that the commercial and mercantile activities be conducted healthily in a way to curb unaccounted money or money not disclosed to the income-tax department and money exchanged in violation of above-mentioned provisions of Income-tax Act. In CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 17 OF 23 case of Vipul Kumar Gupta Vs. Vipin Gupta, 2012 (V) AD (CRI) 189, on complaint U/s 138 of NI Act, the fact that the amount loaned to the accused was not shown in the ITR was also considered and allowed as one of the grounds of acquittal.
44.Another ground of defence raised by the accused is that he took financial assistance from the complainant in the year 2015-2016, and he issued the cheques in question as security, however, he repaid Rs. 6 lakhs to the complainant at the time of marriage of the complainant's daughter in the year 2018. He admitted his liability of Rs. 2 lakhs towards the complainant.
45.To this effect, when suggestions were put forward, CW1 admitted that the marriage of his daughter took place in December 2018. CW1 deposed that the expenses totalling Rs. 2-4 lakhs were incurred for the marriage. He denied the suggestion that the marriage was fixed as early as June 2018, instead claimed that it was fixed in the month of November 2018. CW1 was also questioned about the withdrawal of cash amounts by the complainant, as shown in the complainant's bank account statement Ex. CW1/9 for his daughter's marriage, which he denied. It was also suggested to CW1 that the accused had repaid a total of Rs. 6 lakhs in three installments before the complainant's daughter's wedding, which CW-1 refuted.
46.Here, it is crucial to note that the accused appeared in the witness box and testified himself as DW1, wherein he deposed that the complainant demanded the money before his daughter's marriage and he repaid a sum of CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 18 OF 23 Rs. 2 lakhs each in July 2018, October 2018 and November 2018. DW1 exhibited a computer-generated bank account statement of his bank i.e. Ex. DW1/C1. The said account statement comprised various entries for cash withdrawals between the period of August 2018 to December 2018. It also revealed that there was sufficient balance in the account of the accused at the relevant time. He also deposed that the total expenses for the marriage were around Rs. 30-31 lakhs as per the daughter of the complainant, and not Rs. 3-4 lakhs only. The accused has remained consistent in his defence that he repaid a part loan amount to the complainant before the marriage of his daughter, and the complainant had also withdrawn monies from his bank account during the said period for his daughter's marriage only. The accused's version seems more believable in the light of the above circumstance than that of the complainant's, especially when the execution of marriage during the said period is an admitted fact.
47.Given the above facts and circumstances, evidence of cash withdrawal entries in the bank account statement of the accused, presence of sufficient bank balance in the account of the accused, and overlapping of such withdrawals before the marriage of the complainant's daughter gives much credibility to the defence of the accused and casts doubts on the complainant's story.
48.The complainant has argued in the written submission that there is an admission of financial assistance by the accused all through the defence plea U/s 251 Cr.P.C and U/s 313 Cr.P.C, it doesn't help the complainant's case.
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 19 OF 23 The accused's admission is limited to receipt of Rs. 2 lakh and not Rs. 6 lakh as alleged by the complainant, and neither the accused has admitted the total liability of the amount of the cheques in question nor the loan is disclosed in the ITR especially which was given on interest. Given the judgment of Sanjay Mishra case and Vipul Kumar Gupta case (both Supra), it was stated that the presumption U/s 139 of NI Act stands rebutted where there is a failure to show such loan amount in the ITR and it cannot be held in such cases that the cheque was issued for the discharge of legally recoverable debt or liability.
49.Fourthly, it was also argued by the accused that the cheques in question were not given at the same time and they were given as security in the year 2015- 2016. After a careful perusal of impugned cheques, the court finds that all three cheques are of different series. After carefully examining the disputed cheques, the court determined that all three cheques belong to different series. It is unlikely that a person would give cheques of different series when settling a liability. This casts doubt on the complainant's claim that all the cheques were given at the same time by the accused.
50.During the course of his examination-in-chief, the accused clearly stated that the complainant used to lend money to him, and in return cheques were collected by the complainant and the alleged cheques were given in the year 2015 to 2017. However, no single question or suggestion was put to him concerning the loan transaction of the year 2018 as alleged by the complainant. Hence, it can be said that the complainant had admitted that no CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 20 OF 23 monetary transaction took place between the parties in the year 2018. Reliance in this regard is placed upon the judgment of the Hon'ble High Court of Delhi in a case titled Satyender Kumar Sharma v. Jitender Kudsia, 2005 DLT 498, wherein it was held that " If a witness is not cross-examined on a particular point, the opposite party must be deemed to have accepted the truth of statement."
51.It is important to highlight that the accused could have potentially refuted his legal responsibility entirely. However, in this case, the accused chose to admit his outstanding liability of Rs. 2 lakhs to the complainant throughout the trial, including during his statements under sections 251 and 313 of the Cr.P.C.
52.As far as the judgments relied upon by the complainant are concerned, the factual premises of those cases are materially different from the facts of the present case. For example, in the case of Lekh Raj Sharma vs. Yashpal Gupta, the Hon'ble High Court of Delhi has heavily relied upon the pronotes executed by the accused, wherein the date of loan advancement was clearly mentioned and it was admitted by the accused as well. As already discussed, no loan document has been executed in the present case.
53.In the case of Dilip Chawla vs. Ravinder Kumar and another, the conviction order of Ld. Trial Court was upheld by the Hon'ble High Court of Delhi as the accused had not taken any plausible defence, unlike the present case where the accused raised doubts in the complainant's story by demonstrating inconsistencies in the evidence and also by leading evidence. The legal CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 21 OF 23 position qua initial burden U/s 138 of NI Act discussed in the case of K.N. Beena vs. Muniyappan, AIR 2001 S.C. 2895, has already been taken care of in the present case. Similarly, the facts of the judgment titled Hiten P. Dalal vs. Bratindranath Banerjee, AIR 2001 SC 3897, were totally distinguishable as no defence was taken by the accused in the said case. In the instant case, the accused entered the witness box to his defence and led other oral and documentary evidence.The judgments titled as Vipin Kumar Gupta vs. Vipin Gupta and K.Bhaskaran vs. Sankaran Vaidhyan Balan 1909 (4) RCR Criminal 309 is not much of a help to the complainant's case. In Ravi Chopra vs. State and Others, 2008 (2) KRC, 118[Del], Hon'ble High Court dealt with the issue of expert evidence.
54.The Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted that:
"It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed."
The Decision:
55.In summation, this court is of the view that the accused raised probable doubts in the complainant's story to discredit the complainant's version and to dislodge the presumption in favour of the complainant. Thus, the burden shifted upon the complainant to prove his case beyond the reasonable doubt. However, the complainant has failed to do so as the complainant has not CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 22 OF 23 examined any other witness or exhibited any document to prove the loan transaction. In the case of Kulvinder Singh V. Kafeel Ahmad, 2014 (2) JCC (NI) 100, it was observed by Hon'ble Delhi High Court that:
"The basis principle in Criminal law is that the guilt of respondent/accused must be proved beyond reasonable doubt and if there is slightest doubt about commission of an offence then the benefit has to accrue to him".
56.The benefit of doubt has to accrue to the accused. Accordingly, accused PrithviRaj Rewari is acquitted of an offence punishable U/s 138 of Negotiable Instruments Act.
57.Bail bonds U/s 437A of Cr.PC are to be furnished which would remain valid for a period of six months.
File be consigned to record room after due compliance.
Announced in the open court Digitally signed
by MEENA
today i.e. 31.08.2024 MEENA CHAUHAN
CHAUHAN Date: 2024.08.31
17:50:57 +0530
(Meena Chauhan)
JMFC (NI Act), Digital Court-03,
Central, THC,Delhi/31.08.2024
CC NI ACT 602/2021 RAJESH KUMAR GOYAL VS. PRITHVI RAJ REWARI PAGE 23 OF
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