Delhi District Court
Cc No. 5003223/2016 Radha Raman Rai vs Joginder Singh Page 1 Of 22 on 24 September, 2022
IN THE COURT OF SHRI HARSHAL NEGI, MM05 (NI ACT),
SOUTHWEST DISTRICT, DWARKA COURTS
NEW DELHI
CC No. 50032232016
CNR No. DLSW020094622016
Sh. Radha Raman Rai
S/o Sh. Jaharkhandi Rai,
R/o H.No. 96A, Surya Vihar,
Near Goyla Mode, Deendarpur Extn.,
Najafgarh, New Delhi 110043 ...Complainant
Versus
Sh. Joginder Singh
S/o Sh. Mahender Singh
R/o, Gulmohar Garder, Towar No. 16, 501
Raj Nagar Extention Ghaziabad, Uttar Pradesh.
Bawana, New Delhi ... Accused no.1
Also at:
"Gourav Vashno Dhaba"
Rup Nagar Manali Road, Kirtarpur Sahib,
Pind Hazara Bunga Sahib, Punjab.
Offence complained of : U/s 138, NI Act, 1881
Date on which the complaint : 12.08.2016
was instituted
Plea of the Accused : Pleaded not guilty
Date of Pronouncement of judgment : 24.09.2022
CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 1 of 22
JUDGMENT
At the outset it is imperative to set forth the facts which the complainant has stated in his complaint as well as the affidavit. The case of the complainant is that for the purpose of construction of Gourav Vashno Dhaba the accused approached him for loan of Rs 6,30,000/ and he advanced the loan amount through cheque/transfer as well as in cash between 2011 to 2013. It is his case that out of Rs 6,30,000/, Rs 2,80,000/ was paid from the account of the wife of the complainant vide Cheque no 375259 drawn on SBI Bank dated 28.09.2011. That to discharge the financial liability the accused issued cheque bearing no 571685 dated 30.03.2016 of Rs 7, 90,000/, drawn on ICICI Bank, Ghazaibad Branch to the complainant with an assurance of its encashment. The complainant presented the cheques in his account which were returned with the remarks "Insufficient Funds" vide bank return memo dated 21.12.2016. Thereafter, complainant served a legal notice dated 11.07.2016 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor was the money repaid by the accused. Thereafter, complainant has filed the present complaint case. Material on Record The accused entered appearance on 07.03.2017.
It is apt to mention at this stage that during the course of the trial i.e. prior to the stage of framing of notice, the parties settled the present matter out of court and CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 2 of 22 entered into Ex CW1/D1 out of court. However, on the submission of the complainant that the accused is not making payment the matter was proceeded with. The parties again out of court and without bringing the same to the notice of court, entered into Ex CW1/D2. This document was introduced during cross examination of the complainant. This Ex CW 1/D2 is not in dispute and has been admitted by both the parties. Although, the complainant in his cross examination stated that he has only taken Rs 4, 00,000/ from the accused as per Ex CW1/D2 and has not received additional amount of Rs 1,20,000/ as mentioned in Ex CW1/D2, however, the document i.e. Ex CW1/D2 is to be read as a whole and the same being admitted to have been entered by the complainant himself, it is not in dispute that he during the course of the trial he received Rs 5,60,000/ from the accused with respect to the present matter. Thus, during the pendency of the proceedings the complainant received Rs 5, 60,000/ from the accused.
Notice under Section 251 Crpc dated 28.09.2019 was framed accordingly to which the accused pleaded not guilty and claimed trial. In his Notice under Section 251 CRPC the accused stated that the signature on the cheque are his though he denied filling the particulars of the cheques. He further denied the receipt of legal notice.
The Complainant relied on the following documents:
1. Bank statement reflecting the advancement of the amount is Ex. CW1/1
2. Original cheques are Ex. CW1/2.
3. Copy of return memo is Ex. CW1/3.
CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 3 of 22
4. Copy of legal notice is Ex.CW1/4.
5. Original Postal Receipts are Ex.CW1/5 (colly).
6. Tracking report is Ex. CW1/6 (colly).
7. Section 65B Certificate Ex CW 1/7.
The complainant examined himself as CW 1 and Mrs Ankita Kumari as CW 2. The complainant as CW 1 was cross examined on 05.02.2020, 18.03.2021 and 10.03.2022. In his cross examination dated 05.02.2020 he stated that he know the accused since 20042005. That he do not remember when he first time met with the accused. That he met with the accused firstly somewhere in Delhi. That he do not know the place in Delhi where he met with the accused person. That he used to work at a company namely Adwel, 8F, Hansale Building, 15 Barakhamba Road, New Delhi which used to deal in advertising. That he was working as an accountant in the company. That he have been working with this company as an accountant for the last 2003 so far. That the brother of the accused namely Rajender Singh used to work in the said company as marketing cum field boy. That he cannot remember exactly how he met with the accused. That the accused was the partner of a company i.e. Media 24x7 at Sainik Farm, Delhi which was belonging to his brother namely Rajender Singh. That he used to meet with the accused at that very company during the working hour. That there was no monetary transaction between me and the accused till 2010. That he have provided a loan of Rs.6, 30,000/ to the accused (Rs.4, 30,000/ or Rs.4, 20,000/ through cheque and rest in cash). That he do not remember the exact dates of payment CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 4 of 22 but some payment was given in 2011 and some in the year 2012. That Rs.2 lakhs was given to the accused in cash in 2012. That he do not have any receipt of the said amount. That there was no witness present when the said amount was given. That there were some further transactions in between and a mutual settlement was reached whereby the accused was to repay Rs.7, 90,000/ to him in March, 2016 but the agreement was not in written. He denied the suggestion that he did not give any amount as loan to the accused. He further denied the suggestion that only his wife gave him a loan of Rs.2, 80,000/. He voluntarily stated that the amount was given by him from his wife's bank account as he was operating it. That there was no authority letter executed by his wife in his favour to withdraw any amount from her bank or to provide any loan amount to any person. That he did not enjoin his wife as complainant because the loan was given from on his behalf only, though, it was given from the account of his wife. That he have not taken any written letter from his wife regarding filing of this case. That the accused gave him the cheque as fully filled. He affirmed the suggestion that the cheque in question was given to him after the mutual settlement in March 2016. That the cheque in question was given in March 2016 itself but after the mutual settlement. That he do not have any written document to show the liability of the accused as equivalent to cheque in question amount. That he deposited the cheque in the bank in June 2016 but he do not remember the exact date. He stated that the writing on the cheque does not seem to be of accused except the signature. That he made repeated calls to the accused saying that he was going to deposit his cheque in CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 5 of 22 the bank.
In his cross examination dated 18.03.2021 he stated that he did have some other transaction prior to loan in question, however, he was not able to recall the date time and manner it was conducted. That he did not give any other amount after 2012 to the accused. That since he only know the accused he did not take the cheque in the name of his wife. That the amount was paid in the account of his wife and also in cash by him. That his wife maintains her account in State Bank of India. That the amount was paid from the above mentioned account of his wife. That the written compromise deed out of court was entered between him and the accused wherein it was agreed that the accused will pay Rs.5,60,000/ out of which the accused has paid Rs.4 lakhs through demand draft. He affirmed the suggestion that he have taken Rs.4 lakhs through demand draft from the accused of which receipt was also given by him. That he have not taken any cash apart from it. That he do not have the receipt of the said amount. That before granting loan to the accused, he checked the solvency and paying capacity of the accused. That he do not have any proof to show that as to how many times he visited the accused prior to giving loan.
In his cross examination dated 10.03.2022 the counsel of the accused introduced two documents one being a compromise deed marked as Ex.CW1/D1 and other being a document marked as Ex.CW1/D2. He stated that he have executed the document Ex.CW1/D1. That the document which has been marked as Ex.CW1/D2 bears his signature. He stated that the sentence "I receive cash 1, 60,000/" are not in his CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 6 of 22 handwriting. That apart from the sentence which has been mentioned above the remaining handwriting is his. He stated that it was agreed between him and the accused that an amount of Rs.1, 60,000/ will paid in the addition to the loan amount. That he have not taken Rs.5, 60,000/ but only Rs.4, 00,000/ has been received till date.
Thereafter, CW 2 led her evidence by way of affidavit and stated that the amount of Rs 2, 80,000/ was given to the accused from her SBI account vide Cheque no 375259 which was drawn on 28.09.2011.
CW 2 was cross examined on 02.05.2022. In her cross examination she stated that she is a post graduate. That since she is a housewife her attention and efforts are towards the household and whatever outside work is there the same is managed by her husband. That she is aware of the facts of the present case. That the accused was in need of some amount as he has to construct a restaurant and loan was advanced to him by her husband through her account. That all the transactions relating to the amount advanced was done in Delhi. That she cannot specifically recall the exact place where the discussions pertaining to the amount advanced happened. She voluntarily stated that the accused and her husband i.e. the complainant used to have regular talks through mobile phone.
She denied the suggestion that she had withdrawn the amount of Rs.2, 80,000/ in cash from her bank account. That since her husband is the person who managed everything with respect to the transaction with the accused, he already knows all the CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 7 of 22 facts. That she have not authorised her husband to file the present case since the amount of Rs.2, 80,000/ was forwarded from her bank account to the account of the accused. That she maintain two bank account one with SBI and other is with Punjab & Sind Bank. That her husband maintains his bank account with HDFC Bank. That she cannot recall that her husband had also advanced around Rs.6.50 lakhs to the accused through his bank account with HDFC Bank. She voluntarily stated that she told her husband not to advance such amount to accused. That her husband also used to advance cash to the accused multiple times, however, she cannot recall the exact details. She voluntarily stated that she do not have any proof of the same.
That she have not given any written authorization/intimation to the bank that her husband is operating her SBI Account. She voluntarily stated that since he is her husband he maintains/managing my bank account. That she cannot state the exact amount which was advanced by her husband to the accused from 201213. She voluntarily stated that she is only aware that the accused was liable to return around Rs.6.50 lakhs to her husband. That her husband informed him about the present case and legal formalities.
That she only know that Rs.6.50 lakhs remains due by the accused which was to be paid by him. That the same was informed to her verbally by the complainant. That she do not have any knowledge as to whether any written agreement was entered between her, my husband and accused. That her husband did not show contents of the complaint wherein it has been specifically mentioned that amount of Rs.2, 80,000/ CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 8 of 22 was advanced to accused through her bank account.
The complainant thereafter closed his evidence on 02.05.2022. The statement of the accused under Section 313 CRPC was then recorded on 02.05.2022. In his statement he stated that he did not approach the complainant and in fact the complainant approached him for helping him. That the complainant has only given him an amount of Rs.2,80,000/. That the complainant has also given him some additional amount in cash also. That he have received the legal notice and have not replied the same. That he had given three cheques to the complainant as a security of which one of the cheque is cheque in question. That he have requested the complainant to fill only Rs.one lakh in the cheque. That he have returned an amount of Rs.2 lakhs in cash to the complainant in Connaught Place in around 2013. That he have also deposited the remaining amount as per the instruction of the complainant in 'Gaurav Life Style' in HDFC Bank, Keerath Pur Branch. That he have also deposited certain amounts into the bank account of one Neetika who was the employee of the complainant at his request. That he have returned an amount of Rs.13,60,000/ to the complainant in cash and have the details of the same.
The accused then opted to lead his defence evidence and examined himself as DW 1. In his examination in chief dated 06.08.2022 he stated that he have received an amount of Rs. 2.80,000/ in his bank account from the complainant. That he have issued three blank signed cheques to the complainant against the abovesaid amount in Connaught Place. That he had not filled the particulars of the cheques. That one of the CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 9 of 22 cheque is the cheque in question. That it was also agreed that he will give an interest for 22 months of Rs. 1,43,000/. That the complainant requested him to return the amount so he brought the same to the notice of his brother Sh. Rajender Singh, who referred him one of his friend, who had Rs. 10 lakh and he gave him Rs. 10 lakhs out of which he handed over Rs. 2 lakhs in cash to the complainant. He also stated that he have also given Rs. 1,00,000/ to the complainant on 23.09.2014 and an additional amount of Rs. 1,00,000/ on 30.10.2014. That he have also given an amount of Rs. 50,000/ in cash to the complainant on 08.06.2015. That he have also given Rs. 11,500/ on 25.05.2015 to one Nitika, who was the employee of the complainant. That he have also given Rs. 28,205/to Nitika on 28.07.2015. That he have maintained a ledger account of the above mentioned payments and the same were Ex. DW1/1 (OSR).
He further stated that apart from the amount of Rs. 2,80,000/ complainant has also given him Rs. 1,54,000/ and including the interest he i.e. accused have to return a total amount of Rs. 8,01,220/. That he have already return the amount of Rs. 8,01,220/ to the complainant in cash the details of which are already mentioned in Ex. DW1/1. That he had also assisted the complainant in opening a shop under the name Gaurav Life Style and have also given Rs. 43,00,000/ in cash and some in account. That he have no legal liability. That the details of the amount given by him and same is Ex. DW1/2 (OSR) (running into 08 pages).
DW 1 was then cross examined on 06.08.2022. He stated that the company CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 10 of 22 under the name of Gaurav Life Style belongs to complainant and his i.e. accused wife Ms. Preeti Pawar. That his wife was partner in Gaurav Life Style and also have the signing authority alongwith signing authority with the bank. That the Gaurav Life Style have been established in the name of his son. He denied the suggestion that the income of Gaurav Life Style came into the bank account maintain by Gaurav Life Style. He voluntarily stated that the Main source was cash which was going to complainant Sh. Radha Raman Rai. That the source of income as well as the transaction of Gaurav Life Style was carried out in cash. That he have no official connection or position in Gaurav Life Style. That it was in the name of his wife and he was only helping the complainant in carrying out the business of Gaurav Life Style. He affirmed the suggestion that he have taken a cheque of only Rs. 2,80,000/. He also affirmed the suggestion that he have taken a total of Rs. 8,01,220/ including interest from the complainant.
The accused was confronted with Ex. CW1/D1 and he affirmed the suggestion that he have entered into this settlement and it bears his signature at point B. He stated that the ledger account and the writing also belongs to him. That this ledger is a personal ledger.
Final arguments were heard in detail and evidence was perused. Law Point Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under Section 138 NI Act. A bare CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 11 of 22 reading of Section 138 NI Act reveals that in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:
1. that a person drew a cheque on an account maintained by him with the banker;
2. that such a cheque when presented to the bank is returned by the bank unpaid;
3. that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier;
4. that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and
5. such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.
(Para 26, N. Harihara Krishnan vs J. Thomas, (2018) 13 SCC 663, referred to in Himanshu vs B. Shivamurthy (2019) 3 SCC 797) Section 138 is to be read with the presumption, being a rebuttable presumption, as contained in Section 139. Section 139 provides that:
"Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 12 of 22 nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under Section 138 NI Act and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 NI Act. Section 139 is an example of reverse onus clause which usually imposes an evidentiary burden and not a persuasive burden. In other words, Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show nonexistence of a liability. Further the law is well settled that when an accused has to rebut the presumption under Section 139, the standard of proof of doing so is that of "preponderance of probability" (Rangappa vs Sri Mohan (2010) 11 SCC 441). Once execution of cheque is admitted, it is a legal presumption under Section 139 of Negotiable Instrument Act, the cheque was issued for discharging legally enforceable debt.
Attention is also invited to Section 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. Section 118 of the N.I Act provides: "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 13 of 22 negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Hence, it can be seen that from its very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the Complainant and onus rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability.
Further, the accused in a trial under Section 138 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(Para 20, Kumar Exports vs Sharma Carpets (2009) 2 SCC 513). The accused can also show that he has already returned the amount taken by him. Analysis & Conclusion Now, the law is also well settled that "once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favor of the complainant." (Rangappa v. Mohan, AIR 2010 SC 1898). Reference can also be made to K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, wherein it has been held by the Hon'ble Supreme Court as under:
CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 14 of 22
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
In this matter, the accused has admitted his signature. Therefore the presumption under Section 139 NI Act does get raised in favor of the complainant and against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. It is also a settled position of law that to rebut the presumption it is open for the accused to rely on evidence led by the complainant or material submitted by the complainant in order to raise a probable defence and he need not to necessarily examine himself as a witness (Basalingappa case).
In this matter the accused have made the following categorical admissions:
I. That the signature on the cheque belongs to him. (Admitted in his Notice under Section 251 CRPC) II. That he had issued the cheque in question as a security. (As per his testimony as DW 1) III. That he received a total amount of Rs 8, 01,220/ from the complainant.
(As per his testimony as DW 1) CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 15 of 22 IV. That he entered into a settlement with the complainant which is Ex CW1/D1 which also bears his signature.(In his cross examination dated
06.08.2022) V. That he has returned the complete amount of Rs 8, 01,220/ to the complainant in cash. (As per his testimony as DW 1) VI. That he has maintained the record of return of the amount of Rs 8, 01,220/ in his personal ledger account which is Ex DW 1/1. ((As per his testimony as DW 1) The cheque amount in the present case is Rs 7, 90,000/. At the outset it can be noticed that there is a categorical admission on part of the accused as to receiving a total amount of Rs 8,01,220/. The only defense that can be deduced from the submissions of the accused is that he has already made the payment of Rs 8, 01,220/ to the complainant in cash and has made entries in his personal ledger account which he has tendered as Ex DW1/1 & Ex DW1/2.
Before adverting to the relevancy of Ex DW 1/1 & Ex DW1/2 and to ascertain whether the entries thereunder tantamount to prove that the said entries reflect the payment made by the accused against the outstanding of Rs 8,01,220/, it is imperative to note the law as to book of accounts/ledger account.
Section 34 of Indian Evidence Act deals with the entries in book of account. Section 34 of the Act reads as under: Entries in books of account when relevant Entries in book of account, regularly kept in the course of business, are relevant CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 16 of 22 whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability."
In Central Bureau Of Investigation vs V.C. Shukla & Ors 1998 (3) SCC 410 the Hon'ble Supreme Court observed that from a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that:
i. It has been made in a book,
ii. That book is a book of account and
iii. That book of account has been regularly kept in the course of business.
The Supreme Court further noted that it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability.
It will, therefore, be necessary to first ascertain whether the entries in Ex DW1/1 & Ex DW1/2 fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed.
The very first test is to ascertain is whether Ex DW1/1 & Ex DW1/2 are a book. 'Book' ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound together so as to form a material whole. Loose CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 17 of 22 sheets or scraps of paper cannot be termed as 'book' for they can be easily detached and replaced. In Mukundram vs. Dayaram [AIR 1914 Nagpur 44], quoted with approval in V. C Shukla Case, while dealing with the word "Book" in context of Section 34, the Court observed: " In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to the moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book........I think the term "book" in S. 34 aforesaid may properly' be taken to signify, ordinarily, a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the purposes of S. 34, and I have no hesitation in holding that unbound sheets of paper in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of S. 34."
Ex DW1/1 & Ex DW1/2, it is noted, indeed is a collection of papers bound together with the intention that such binding shall be permanent and the papers used CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 18 of 22 collectively in one volume. Thus, it can be safely said that Ex DW1/1 & Ex DW1/2 is a book within the meaning of Section 34.
The next is to ascertain whether Ex DW1/1 & Ex DW1/2 is a "book of account". Here again the judgment of Mukundram case is of relevance. The Court with respect to "Book of account" observed:
"To account is to reckon, and I am unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totaled or balanced, or both, as the case may be, there is no reckoning and no account. In the making of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed."
Taking guidance from the above observation, the perusal of Ex DW1/1 & Ex DW1/2 reflects that its structure is of a table under the headings of "Date", "Particulars", "C.B. Folio", Debit", "Credit" and "Balance". Further, bare perusal of the entries made in Ex DW1/1 & Ex DW1/2 reflects the totaling and balancing. Thus, Ex DW1/1 & Ex DW1/2 can also safely be taken to be a "Book of account".
The next question is to ascertain is whether this Ex DW 1/1 & Ex DW1/2 is CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 19 of 22 regularly kept during the course of business. Two terms are relevant in this regard, "business" and "regularly kept".
So far as "business" is concerned, the Supreme Court in Narain Swadesh Weaving Mills vs. The Commissioner of Excess profits Tax 1955 (1) SCR 952 held that the word 'business' connotes some real, substantial and systematic or organized course of activity or conduct with a set purpose'. The above interpretation was quoted with approval in Mazagaon Dock Ltd. vs. The Commissioner of Income Tax and Excess Profits Tax 1959 SCR 848. The Supreme Court in Barendra Prasad Ray vs. I.T.O. 1981 92) SCC 693 observed that the word 'business' is one of wide import ad it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The above said case laws were quested with approval in V C Shukla Case.
With respect to the term "regularly kept", the Supreme Court in V C Shukla Case noted that the same is to be understood to mean regularly and systematically maintained.
Perusing Ex DW1/1 & Ex DW1/2 in the light of the above two paras together, Ex DW1/1 & Ex DW1/2 appears to be kept regularly in a continuous and systematic manner.
Thus, from the discussion above Ex DW 1/1 & Ex DW1/2 can be stated to be admissible under Section 34 as book of accounts.
Having satisfied the first part of Section 34, the next test which is to be satisfied CC No. 5003223/2016 Radha Raman Rai Vs Joginder Singh Page 20 of 22 is the second part of Section 34 i.e. the probative value of the entries made which in this case is the entries made in Ex DW 1/1 & Ex DW1/2. The law is well settled that even if the requirements of first part of Section 34 are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence. In other words, even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person (CBI vs V C Shukla AIR 1998 SC 1406).
In the case at the hand Ex DW 1/1 & Ex DW1/2, per the admission of the accused himself, is a personal ledger account. The element of selfinterest and partisanship cannot be ruled out. It is not the case of the accused that the entries were made in the presence and with the knowledge of the complainant. It is also not the case of the accused that the complainant has verified/signed or acknowledged the entries made in Ex DW1/1 & Ex DW1/2. The entries reflecting in Ex DW1/1 & Ex DW1/2 are made behind the back and without the knowledge of the complainant. The accused has not brought any independent evidence so as to establish any credence on the entries made. Ex DW 1/1 & Ex DW1/2 are nothing but a personal ledger account maintained by the accused for his own personal record and hence the credibility of this record does not inspire much confidence.
Thus, the accused has not been able to establish that he has retuned the amount of Rs.8,01,220/ taken by him from the complainant against which the cheque in question has been issued.
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Therefore, in view of the oral and documentary evidence brought on record by the complainant, statement of the accused under Section 313 Cr.P.C and defence raised by the accused, the accused has failed to rebut the presumption under Section 139 NI Act and it is clear that the accused had committed an offence under Section 138 of the Negotiable Instruments Act.
On the basis of the above said analysis and conclusions arrived, the accused namely Joginder Singh S/o Shri Mahender is convicted for the commission of the offence punishable under Section 138 of the Act.
This Judgment contains 22 pages.
Every Page of this Judgment has been signed by me. Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
Announced in the open court 2022.09.27
16:52:12
on this day of 24th September, 2022 +0530
(HARSHAL NEGI)
MM(NI Act)05/SouthWest District
Dwarka Courts/New Delhi
24.09.2022
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