Delhi District Court
Sh. Arun Kumar vs Shri Sunil Dutt on 27 November, 2014
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No. 38/14
Sh. Arun Kumar
S/o Late Sh. Shyam Lal
R/o 11, Masjid Lane, Bhogal
Jangpura, New Delhi110014. . . . . . Appellant
VERSUS
Shri Sunil Dutt
S/o Shri Chattar Singh
R/o 410A, Kalpana Nagar,
Shibbanpura, Ghaziabad, U.P. 201001. . . . . . Respondent
__________________________________________________________
Date of Institution : 20.09.2014
Date when arguments were heard : 21.11.2014
Date of Order : 27.11.2014
O R D E R :
This is an appeal under Section 372 of The Code of Criminal Procedure directed against order / judgment dated 26.07.2014 passed by Ld. MM (NI Act), SouthEast, New Delhi in case CC No. 644/1/2012.
On a complaint lodged by appellant Arun Kumar, respondent Sh. Sunil Dutt was tried for offence punishable under CA No. 38/14 1 of 7 Section 138 of The Negotiable Instruments Act. After trial, the respondent was acquitted by the trial court. Feeling aggrieved, the complainant has approached this court, seeking setting aside impugned judgment.
Parties of this case are stated to be relatives. Respondent is a brotherinlaw of cousin of appellant. As noted by the trial court, according to complainant in month of January 2011, accused approached him seeking a friendly loan of Rs.3.5 lacs. Complainant agreed for such a loan and gave him a cheque of Rs.3.5 lacs. Accused came to him again and disclosed that said cheque was destroyed in fire. Complainant paid Rs.3.5 lacs in cash. In repayment of said amount, the accused issued four cheques no. 843822 dated 04.06.2011, 885408 dated 26.12.2011, 885409 dated 04.01.2012 and 885410 dated 05.03.2012, all of Rs.50,000/ each. When complainant presented said cheques to his bank for encashment, same returned unpaid with remarks 'funds insufficient'. Complainant issued demand notice dated 20.07.2012 through his counsel but no such payment was made. Constrained in this manner, appellant lodged a complaint in respect of three cheques no. 885408, 885409 and 885410.
When notice under Section 251 Cr.P.C. was issued upon the accused, he explained that on 18.08.2011, he requested the complainant to advance a loan of Rs.2.50 lacs. Complainant issued a cheque for said CA No. 38/14 2 of 7 amount i.e. Rs.2.50 lacs drawn on Canara Bank, Bhogal. Complainant in return, took three security cheques duly filled by him. He did not present aforesaid cheque for encashment and did not avail any loan. He demanded his security cheques from the complainant but the latter refused to return these on one pretext or the other.
To prove his case, complainant examined himself as CW1 and reiterated his case. He also examined one Ajeet Kumar as CW2. The latter also verified the accused approached the complainant for a loan, the latter brought out cash of Rs.2.5 lacs from his inner room and took Rs.1.00 lac from him i.e. CW2. He handed over all this cash i.e. Rs.3.5 lacs to the accused. The accused in his statement as DW1 claimed that he never borrowed any money from the complainant and reiterated that he gave cheques in question to the complainant as a guarantee because complainant had given him a cheque of Rs.2.5 lacs.
It is contended by Ld. Counsel for appellant that when the accused did not dispute having issued cheques in question, dishonour of same by his bank, service of legal notice upon him and the fact that he did not return the cheque amount despite service of said notice in time, all this raises presumption in favour of complainant and the trial court ignored said presumption.
According to Ld. Counsel for respondent, the accused was able to prove on record that cheques in question were issued by him as CA No. 38/14 3 of 7 security and hence no offence was committed by his client.
As mentioned above, it is not in dispute that cheques in question were signed / issued by the accused. Same returned dishonoured when presented for encashment for reasons 'funds insufficient' and the accused did not make payment of cheque amount despite service of legal notice within prescribed time. According to Section 139 of NI 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, of any debt or other liability.
The accused in his statement as DW1 deposed on oath that he gave cheques in question to the complainant against the cheque Ex.DW1/1 given by the complainant to him. Even if it is presumed that said cheque was given by the complainant, it is not explained by accused as what necessity arose that he was compelled to give said cheques as security.
Trite it to say that after presumption under Section 139 NI Act having arisen in favour of complainant, it was for the accused to prove his case i.e. cheques in question were given by him to the complainant as security. A perusal of impugned judgment, shows that following were factors, which impelled the trial court in coming to conclusion that defence raised by the accused was so probable, which CA No. 38/14 4 of 7 caused doubt upon the existence of legal liability of accused and it (doubt) was strong enough to rebut presumption under Section 139 of the Act : i. The complainant did not file any document to prove that he gave loan of Rs.3.5 lacs, to the accused by way of cash. ii. Cheque of Rs.2.5 lacs (Ex.DW1/1) was not encashed by the accused. The complainant in his crossexamination disclosed that cheque Ex.DW1/1 was given to accused for handing over the same to some other person to purchase a property. Complainant neither issued any notice to the accused nor filed any complaint against him (accused) in respect of that cheque. iii. The complainant failed to prove as how cheque Ex.DW1/1 came into possession of accused or why he issued cheque of Rs.3.5 lacs to the accused and if he i.e. complainant issued cheque of Rs.3.5 lacs on earlier occasion for giving loan than why he gave Rs.3.5 lacs to him, in cash.
iv. Complainant did not file any statement of his bank account to prove as how he arranged part of loan amount of Rs.2.5 lacs, from his saving.
Advancement of loan of Rs.3.5 lacs to the accused by complainant was not in issue in this case. Even otherwise, when presumption arose in favour of complainant, according to Section 139 of CA No. 38/14 5 of 7 the Act, onus shifted from complainant to accused. The complainant did not remain legally bound to prove said fact. As discussed already, according to complainant first he issued a cheque of Rs.3.5 lacs to the accused but the latter came to him and asked for cash stating that said cheque was destroyed in fire. When complainant and accused are relatives of each other, it was not surprising that believing the version of accused, complainant opted to pay cash of Rs.3.5 lacs to the accused. So far as cheque Ex.DW1/1 is concerned, according to complainant, said cheque was given by him to the accused to be handed over to some other person to buy some property but no deal was finalised. True, it is not explained by the complainant as why he did not bother about said cheque to take it back from the accused but on the basis of said reason it was not proper to dismiss the claim of complainant, disbelieving his entire story. Even if the complainant did not explain as how he arranged amount of Rs.2.5 lacs from his saving, it did not remain so material when complainant as CW1, swore on oath that he advanced a loan to accused. The latter gave cheques in question to repay that amount and accused admitted having issued such cheques.
From the evidence on record, in my opinion, the accused failed to prove his defence, even by preponderance of evidence. A doubt however strong, cannot take place of proof. Defence raised by accused was still probable. It could not disprove the existence of legal liability of CA No. 38/14 6 of 7 latter and hence was not enough to dismiss the complaint. Impugned judgment is thus set aside. The respondent / accused is convicted for offence punishable under Section 138 of NI Act. Appeal of complainant to that extent is thus admitted.
To come for consideration on sentence on 28.11.2014. Announced in the open (RAJENDER KUMAR SHASTRI) court today i.e 27th November 2014 ASJ02/SE/ SAKET COURT NEW DELHI CA No. 38/14 7 of 7