Delhi District Court
Sudesh Kumar vs Pradeep Cc No. 4842/2010 on 16 April, 2012
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
Sudesh Kumar vs Pradeep CC No. 4842/2010
16.04.2012
Judgment U/s-264 CrPC
"Just as there is evidence on behalf the prosecution so there may be evidence on
behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is
entitled to the benefit of the doubt. But while the prosecution must prove the guilt
of the prisoner, there is no such burden laid on the prisoner to prove his innocence
and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy
the jury of his innocence. . . Throughout the web of the English criminal law one
golden thread is always to be seen, that it is the duty of the prosecution to prove the
prisoner's guilt subject to what I have already said as to the defence of insanity and
Subject also to any stationary exception. If, at the end of and on the whole of the
case, there reasonable doubt created by the evidence given by either the
prosecution or the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the prisoner is
entitled to an acquittal. No matter what the charge or where the trial, the principle
that the prosecution must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained."
------Viscount Sankey, L. C. in Woolmington versus Director of Public Prosecution: 1935 AC 462.
The complainant has filed the present complaint on the basis of a dishonored cheque of Rs.1,50,000/- received in lieu
of a friendly loan given to the accused. The said cheque when dishonored for account closed, the complainant issued a legal
demand notice to the accused however, the accused failed to pay the amount. Hence this complaint. The complainant has filed
his affidavit to establish the ingredient of the section 138 NI Act. The cheque Ex. CW-1/1, returning memo Ex. CW-1/2, legal
demand notice Ex. CW-1/3, registry receipt Ex. CW-1/4 and UPC Ex.CW1/5.
Initially, complainant had named two accused persons. But the ld. predecessor vide his order dated 14.01.2010
discharged the accused pradeep. The said order was never challenged by any of the parties and it became final so far as the
trial court is concerned. As such, this court is not required to consider anything about the another accused pradeep. Be that as it
may. Notice was framed against the accused Ashok Kumar to which he pleaded not guilty. Subsequently, when the accused
was not ready to lead defence evidence, the opportunity was closed. However, ld. revisional court granted opportunity vide its
order dated 23.03.2011. Thereafter, on an application u/s-145(2) NI Act, the complainant was cross examined. The accused
also led defence evidence wherein he examined three witnesses including himself.
Both the parties have been heard.
Sudesh Kumar vs Pradeep CC No. 4842/2010 1
Accused taken a defence that the instant cheque was given to the complainant but the cheque was blank and was
given for a loan of Rs.20,000/- sought for from the complainant which was subsequently not advanced by the complainant. It
is the stand of the accused that Rs.20,000/- was required for repairing of his taxi.
The complainant entirely relied upon mandatory presumptions of law and never tried to examine any other witness to
establish the loan transaction of Rs.1,50,000/- whereas as per the own case of the complainant, one person namely Pradeep had
played an important role in the entire dealing(Instead, the complainant has referred the said Pradeep as accused and always
indicated the presence of two persons i.e. Pradeep and Ashok). No doubt, initially Pradeep was summoned as an accused. But
when the said Pradeep was discharged by the Ld. Predecessor, there was no reason for the complainant not to examine the said
Pradeep as his witness. After all, Pradeep was the only person who could have established the loan transaction. Reliability of
witness was to be seen and considered by the court. At least the complainant should have applied for summoning of Pradeep as
his witness.
Complainant in his cross-examination admitted that there was no written document, no receipt of acknowledgment in
respect of the loan. He stated that loan amount was given in cash. He further admitted that he was not having sufficient amount
in his bank account at the time of giving of loan. He further accepted that in his complaint he never made any averment
regarding arrangement of loan amount. He accepted that the instant cheque was received as a security. He further accepted to
have not placed any document showing the activity of the accused in respect of property dealing business. It may be noted that
the basis of the loan transaction is the alleged property dealing business of the accused and a necessity of purchasing a
property in the line of business.
Complainant has clearly failed to show his soundness of money to advance a loan amount of Rs.1,50,000/- at the time
when he claimed to have advanced the loan. The loan transaction also calls for a serious consideration in view of non-
execution of any document/acknowledgment receipt and in view of failure of complainant to establish the connection of the
accused with the necessity of demand of loan.
Accused deposed on the line of his defence. Complainant tried to discredit the testimony of the accused by
questioning the alleged accident of the taxi of the accused. The accused remained unimpeached during the cross-examination.
Though there are some minor problem with regard to the statement of accused in his cross-examination so far as taking of loan
from and repayment to the other person is concerned, but that is no sufficient to discredit the entire version of the accused.
Accused has remained unimpeached on the point of demand of Rs.20,000/- from the complainant, giving of a blank cheque for
security, non-payment by the complainant and non-return of the cheque.
Accused examined one Pradeep. It may be noted that as indicated earlier this pradeep was almost present in the every
scene as per the own version of the complainant. This witness supported the version of the accused. This witness also
remained unimpeached in the cross-examination.
Sudesh Kumar vs Pradeep CC No. 4842/2010 2
Accused examined a witness from his Bank who brought a statement of account Ex.DW2/A. This is computerized
copy and not certified in accordance with the Banker's Books Evidence Act. Therefore I am not inclined to read this document
in evidence. However, the facts are not going to change. Accused has categorically stated in his chief that his bank account
was closed on 28.08.2006 and that cheques No. 173562, 173574 and 173575 were encashed on 23.10.2004, 11.112004 and
24.12.2004 respectively. Complainant never cross examined the accused on this aspect. Accused also gets support from the
fact that the cheque returning memo is showing account closed. It is well settled law that if an opposite party does not question
a material fact in the cross-examination, he should be deemed to have admitted the specific fact as stated by the witness in the
examination in chief. The instant cheque bears a number 173571. If the cheque of numbers prior and after the number of the
instant cheque were encashed in the year 2004, there will be hardly any justification in saying that accused issued the instant
cheque in the year 2008.
Mandatory presumptions of law do not relieve the prosecution from establishing the foundational facts. The
prosecution has to stand on its on legs. The burden is so heavy that no blemishes in the story of the accused can give a right to
the complainant to claim that his version should be preferred. whereas the burden on the accused is slightly light as he has to
discharge the burden by preponderance of probabilities. If he shows by preponderance of the probabilities that the
consideration does not exist or the non existence of consideration is so probable that a prudent man in the circumstances
should believe its non existence, the complaint has to fail. It is well settled law that even if two views are possible, the court
should adopt the view which does not interfere in the life and liberty of any person.
The complaint has to fail.
Nature and extent of rebuttal:
2. 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,
Sudesh Kumar vs Pradeep CC No. 4842/2010 3
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 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."
2.1. To what extent a mere reliance upon the presumptions of law can help the complainant is the question involved in the
present case.
2.2. Hon'ble Supreme Court in K. Prakashan vs P.K. Surenderan decided on 10 October, 2007 has also dealt with the
aspect of friendly loan and scope of presumptions of law. The facts of the case were:
"3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs.
3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995.
The said cheque was dishonoured on the ground of insufficient fund. Allegedly, when
the matter was brought to the notice of the appellant, he undertook to remit the amount
on or before 30.01.1996. The cheque was again presented but the same was not
encashed on the ground payment stopped by the drawer.
5. The complainant in support of its case led evidence to show that he had
advanced various sums on the following terms:
On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on
12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on 18-6-95, Rs.
40,000/- and on 7-8-95, Rs. 12,000/-.
6. Defence of the appellant, on the other hand, was that he had issued blank
cheques for the purpose of purchase of spare parts, tyres, etc. in connection with the
business of transport services run in the name of his brother. The blank cheques used
to be returned by the sellers of spare parts, etc. when the amounts were paid.
According to the appellant, the complainant lifted the impugned cheque book put in
Sudesh Kumar vs Pradeep CC No. 4842/2010 4
the bag and kept in his shop. Appellant in support of his case examined the Bank
Manager of the Bank concerned. "
Hon'ble High Court having reversed the judgment of acquittal, accused approached the Hon'ble Supreme Court.
Hon'ble Supreme Court has observed therein that:
"14. The learned Trial Judge had passed a detailed judgment upon analysing the
evidences brought on record by the parties in their entirety. The criminal court while
appreciating the evidence brought on record may have to weigh the entire pros and
cons of the matter which would include the circumstances which have been brought on
record by the parties. The complainant has been found to be not a man of means. He
had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He although had himself
been taking advances either from his father or brother or third parties, without making
any attempt to realize the amount, is said to have advanced sums of Rs. 86,000/- on
8.06.1994. Likewise he continued to advance diverse sums of Rs. 28,000/-, Rs.
50,000/-, Rs. 40,000/- and Rs. 12,000/- on subsequent dates. It is not a case where the
appellant paid any amount to the respondent towards repayment of loan. He even did
not charge any interest. He had also not proved that there had been any commercial or
business transactions between himself and the appellant. Whey the appellant required
so much amount and why he alone had been making payments of such large sums of
money to the appellant has not been disclosed. According to him, he had been
maintaining a diary. A contemporaneous document which was in existence as per the
admission of the complainant, therefore, was required to be brought on records. He
failed to do so. He also did not examine his father and brothers to show that they were
men of means and in fact advanced a huge sum to him only for the purpose of grant of
loan by him to the appellant. The learned Trial Court not only recorded the
inconsistent stand taken by the complainant in regard to the persons from whom he
had allegedly borrowed the amount, it took into consideration the deposit of the
cheques in the bank commenting: Ext. D1 the counterfoil of the cheque book issued to
the accused from that bank, was proved through him. It contains the counterfoils of the
cheques 782451 to 782460. Ext. D2 is the pass book issued to the accused from that
bank. SW1 is the Branch Manager of Syndicate Bank,Koyilandy. He would say that in
Ext. P4 ledger extract, cheque No. 782460 reached the bank for collection on
30.12.93. The net transaction in that account was in the year 1996. Cheque No.
782451 reached the bank on 8.1.96. Ext. D1 shows that is the first cheque in that book.
782460 is the lost cheque in that book. If the lost cheque i.e. 782460 reached the bank
for collection on 30.12.93 in normal and reasonable course the first cheque i.e. 782451
might have been issued even prior to that date. Case of the complainant is that Ext. P1
Sudesh Kumar vs Pradeep CC No. 4842/2010 5
cheque was given to him by the accused on 5.10.95 and the cheque was dated
18.12.95. Ext. P4, D1 and D2 substantiate the case of the accused that the allegation of
the complainant that Ext. P1 cheque was given to him on 18.12.95 is not genuine."
Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
"15. The High Court, as noticed herein before, on the other hand, laid great
emphasis on the burden of proof on the accused in terms of Section 139 of the Act.
16. The question came up for consideration before a Bench of this Court in M.S.
Narayana Menon (supra) wherein it was held:
"38. If for the purpose of a civil litigation, the defendant may not
adduce any evidence to discharge the initial burden placed on him, a
fortiori even an accused need not enter into the witness box and
examine other witnesses in support of his defence. He, it will bear
repetition to state, need not disprove the prosecution case in its
entirety as has been held by the High Court."
A presumption is a legal or factual assumption drawn from the existence of
certain facts. It was furthermore opined that if the accused had been able to discharge
his initial burden, thereafter it shifted to the second respondent in that case.
The said legal principle has been reiterated by this Court in Kamala S. v.
Vidhyadharan M.J. and Another [(2007) 5 SCC 264] wherein it was held:
"The Act contains provisions raising presumption as regards the
negotiable instruments under Section 118(a) of the Act as also under
Section 139 thereof. The said presumptions are rebuttable ones.
Whether presumption stood rebutted or not would depend upon the
facts and circumstances of each case."
The nature and extent of such presumption came up for consideration before
this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6
SCC 39] wherein it was held :
"30. Applying the said definitions of proved or disproved to the
principle behind Section 118(a) of the Act, the court shall
presume a negotiable instrument to be for consideration unless
Sudesh Kumar vs Pradeep CC No. 4842/2010 6
and until after considering the matter before it, it either believes
that the consideration does not exist or considers the non-
existence of the consideration so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that the consideration dos not exist. For
rebutting such presumption, what is needed is to raise a probable
defence. Even for the said purpose, the evidence adduced on
behalf of the complainant could be relied upon. "
This Court clearly laid down the law that standard of proof in discharge of
the burden in terms of Section 139 of the Act being of preponderance of a probability,
the inference therefor can be drawn not only from the materials brought on record but
also from the reference to the circumstances upon which the accused relies upon.
Categorically stating that the burden of proof on accused is not as high as that of the
prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary
value. Presumptions are raised in terms of the Evidence Act.
Presumption drawn in respect of one fact may be an evidence
even for the purpose of drawing presumption under another. "
..........
18. Ms. Srivastava has relied upon a decision of this Court in Goaplast (P) Ltd. v. Chico Ursula DSouza and Another [(2003) 3 SCC 232].........
"The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of ones own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing Sudesh Kumar vs Pradeep CC No. 4842/2010 7 the same against a debt or liability, a drawer will easily avoid penal consequences under Section 138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi 2 . On same facts is the decision of this Court in Ashok Yeshwant Badave v.
Surendra Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date. "
19. No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged.
20. It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137] The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. "
Sudesh Kumar vs Pradeep CC No. 4842/2010 82.3. Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 has observed as under:
"17. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a "fortiori" even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.
39. A presumption is a legal or factual assumption drawn from the existence of certain facts."
2.4. Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31.The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.Sudesh Kumar vs Pradeep CC No. 4842/2010 9
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
... ....
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. ......
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "Sudesh Kumar vs Pradeep CC No. 4842/2010 10
2.5. In the facts and circumstances of the present case, if we make a fine balance between the two propositions i.e. reverse onus and presumption of innocence, it can be safely held that accused has successfully probabilised his defence by showing that the non-existence of debt or liability and consideration is probable or its non existence is so probable that a prudent man would under the circumstances act upon the supposition that it did not exist.
2.6. I am of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has further held that:
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the na- ture of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persua- sive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'prepon- derance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Conclusion:
3. I accordingly return a finding of not guilty against the accused Ashok Kumar.
4. Accused Ashok Kumar is hereby acquitted from the charges in the present complaint case.
5. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM (NI Act)-Central-01/THC/Delhi/16.04.2012 Sudesh Kumar vs Pradeep CC No. 4842/2010 11