Delhi District Court
Rajeev Goel vs Ashok Sharma Cc No.1955/10 on 25 February, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-01,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
Rajeev Goel Vs Ashok Sharma CC No.1955/10
25.02.2014
JUDGMENT
(Brief reasons for decision as required under section-264 Cr.PC.) Three different cases have been filed by the complainant on the basis of three dishonoured cheques. The story tried to be built by the complainant is that he had advanced a loan of Rs.3.5 lacs to the accused and in discharge thereof accused had issued the cheque of Rs.3.5 lacs on which the complainant filed the complaint case CC No.1940/10. Further complainant had also advanced another loan of Rs.3 lacs to the accused and in discharge of the said liability accused had issued a cheque of Rs.3 lacs upon which the complainant filed CC No.1963/10. Furthermore, the accused had purchased certain materials worth Rs.1,52,000/- from the complainant and in discharge thereof had issued a post dated cheque of Rs.1,52,000/- upon which the complainant had filed the complaint case CC No.1955/10.
2. The present case is based upon a dishonoured cheque of Rs.1,52,000/- received in purported discharge of liability regarding purchase of some materials.
2.1. A bare perusal of the affidavit of the complainant goes to show that the complainant has no foundation to establish the claim. A portion form affidavit may be quoted as under:
"That the accused has purchased the plastic caps, measuring caps, medicine spoons and other plastic items from the complainant worth Rs.1,52,000/- and in discharge of his said liability the accused issued post dated cheque....."Rajeev Goel Vs Ashok Sharma CC No.1955/10 1
2.2. Clearly, complainant has not disclosed when the accused had placed the order for purchase, what number of material had been purchased, what was the proportion of different caps, spoons, plastic items? Even he has not disclosed what was the date on which the transaction taken place and what was the total amount of transaction. Even further, the complainant has not provided the date on which the accused allegedly given him the cheque.
2.3 The complaint suffers from clear vagueness. I consider that on this count alone, the complaint is required to be rejected. Hon'ble High Court of Delhi has acquitted an accused who was convicted by the trial court and conviction was upheld by the Ld. Sessions Court. The prime consideration in the said case was vagueness of the complaint (see Pine Product Industries And Anr. vs R.P. Gupta And Sons Anr. II (2007) BC 20).
3. Then we come to the cross-examination of complainant. Some portion thereof may be quoted as under:
"It is correct that respondent paid all the outstanding amount and cleared all the ledger account in December 2005 through eight account payee cheques which are mentioned in my application U/s 145(2) NI Act."
"Respondent paid all the outstanding amount and cleared all the ledger account in December 2005 through eight account payee cheques and paid total amount of Rs. 2,51,599/- which is Exh.DW1/1 alongwith the application U/s 145(2) NI Act."
"I have not issued any bill to the respondent. It is correct that I have not filed any bill in this complaint case."
"I have not issued any Challan in February 2007."
3.1. Clearly, the complainant has not been able to explain as to how there was any liability on the accused. If complainant has not filed any bills and did not issue any bills to the accused, how can he claim any liability towards the accused? Further, if the accused had already cleared the en- tire outstanding in December 2005, then there can not be any question of issuance of a cheque Rajeev Goel Vs Ashok Sharma CC No.1955/10 2 dated 31.03.2007 in discharge of any liability arising out of any transaction. Pertinently, com- plainant has not been able to establish that there was any transaction between the parties in the year 2007 or any transaction after December 2005 for which the cheque in question could have been issued by the accused.
3.2. I am of the view that a complainant has to stand on his own in a criminal prosecution and no blemishes of the story of the accused can give any right to any complainant to claim that his case should be treated as successfully established.
4. I am not oblivious of the fact that there are mandatory presumptions of law but, however, such presumptions are always rebuttable even by preponderance. It is well settled law that the mandatory presumptions of law can only be inferred in furtherance of prosecution stand and not in derogation of the same. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo Rajeev Goel Vs Ashok Sharma CC No.1955/10 3 establish his case beyond a reasonable doubt-see Mahesh Prasad Gupta v. State of Rajasthan(1). Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
5. In view of the above, I am of the opinion that complainant has failed to establish the liability and the accused have been successful in rebutting the presumptions. As such accused is entitled for an acquittal from the charges in the present complaint case i.e. u/s-138 NI Act.
6. In view of the above, Accused Ashok Sharma is acquitted from the charge in the present complaint case i.e. u/s-138 NI Act.
7. For clarification, it may be noted that in the present file, only two witnesses were examined in defence i.e. Deepti Sharma and Ashok Sharma. But it appears that since three cases were pending between the parties, so in continuity to other two cases, the nomenclature of defence witnesses have been written as DW4 and DW5 due to typographical mistake.
8. A copy of this order be placed on the web site of the district courts.
(RAKESH KUMAR SINGH) MM-(NI Act)-Central-01/THC/Delhi 25.02.2014 Rajeev Goel Vs Ashok Sharma CC No.1955/10 4