Delhi District Court
Page No. 1 To 8 Anil Kumar Saini vs . Anuradha Thread & Anr. on 7 May, 2012
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : PP313/05
b. Date of the commission of the offence : 15/09/2005
c. Name of the complainant Anil Kumar Saini
d. Name of accused person and his parentage: M/s Anuradha Thread,
and residence Through its proprietor
Sh. Digamber Jha S/o
Sh. Punya Dhar Jha, R/o 205,
Jawahar Park, Khan Pur,
New Delhi62.
&
Sh. Digamber Jha S/o
Sh. Punya Dhar Jha, R/o 205,
Jawahar Park, Khan Pur,
New Delhi62.
e. Offence complained of : Dishonoring of
cheque for
Account closed.
f. Plea of the accused and his examination (if any): Not guilty
Because cheque in
Page No. 1 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
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question was given as blank
signed security cheque.
g. Final Order : Held not guilty.
Acquitted.
h. Date of such order : 07.05.2012.
i. Brief reasons for decision:
1.Following ingredients have to be proved for constituting an offence u/s 138 of NI Act.
(a) Unpaid cheque must have been drawn from a live account of drawer at the time of issuance of cheque in question.
(b) The unpaid cheque in question must have been issued in discharge of a debt or other legally enforceable liability, in whole or in part.
(c) The cheque in question was presented to the bank within a period of 6 months from the date of issuance of cheque or within the period of its validity.
(d) The cheque is returned by the bank of drawer unpaid because of insufficiency of the funds in the account of the accused or it exceeds the amount arrangement made to be paid from that account by an agreement made with the that bank or cheque is return with endorsement account closed.
(e) The payee or holder in due course of such cheque should have given a written legal demand notice to the drawer of the cheque within 30 days of the receipt of the information by the complainant from the banker of the accused Page No. 2 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
3regarding of the return of the cheque unpaid.
(f) The drawer of such cheque should have failed to make a payment of the such amount of the money to the holder of the cheque within 15 days of the receipt of the said legal demand notice.
(g) Any written complaint u/s 138 of NI Act should have been made before Ld. MM concerned within one month from the date on which cause of action raised u/s 138 (c) of NI Act unless condonation of delay has been granted by the court concerned.
2. A criminal prosecution would neither mean for recovery of money nor it would be for enforcement of any security. Section 138 of NI Act is a penal provision which entails a conviction and sentence on the proof of guilt in a duly conducted criminal proceedings for bringing the offender to the penal liability. One must always keep in mind the basic tenant of criminal jurisprudence as to the penal provision has to be interpreted strictly so that no one can ingeniously or guilefully or strategically be prosecuted and punished.
3. Unlike cardinal principle of general criminal jurisprudence regarding presumption of innocence of accused till conviction on merit by the competent court of law and burden of proof lie on the prosecution to prove guilt beyond all reasonable doubts, section 118, 139 and 140 of NI Act relieved and rescued the complainant from shouldering the initial onus of proof by providing for legal Page No. 3 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
4presumption as to consideration and genuineness in favour of cheque holder.
4. However, it is also settled position that the accused has to rebut the presumption u/s 139 of NI Act, with the standard of proof of the preponderance of probabilities. Thereafter accused may be able to raise a probable defence/plea which creates doubt about the existence of consideration in form of debt or liability legally enforceable by leading direct evidence or even circumstantial ones. Accused may discharge his burden on the basis of materials already brought on the record. In that case burden of proof shift again on the complainant who will be obliged to prove the same as matter of fact. Accordingly presumption of innocence and doctrine of reverse burden introduce by section 139 and proviso to section 138 of NI Act should be delicately balanced.
5. As per version of complaint, complainant was running a factory of Kharad works in the name of M/s Anil Engineering Works and accused was also running a factory in the name of M/s Anuradha Thread. Complainant submitted that there were family terms of relation between accused and complainant. It is case of complainant that complainant had given a friendly loan of Rs. 2,00,000/ in month of January 20064 to accused namely Digamber Jha at his request. It is also case of complainant that accused issued a post dated cheque in question Ex. CW1/A dt. 02.08.05 for an amount of Rs. 2,00,000/ in favour of complainant. It is further submitted by the complainant that cheque in question returned finally Page No. 4 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
5unpaid vide cheque returning memo Ex. CW1/C dt. 18.08.2005 with remarks Account Closed. It is further case of complainant that accused did not pay the cheque amount despite service of legal demand notice Ex. CW1/D, dt. 30.08.2005 within stipulated time. Hence the present complaint case.
6. On the other hand, accused pleaded that he had taken one loan of Rs. 1,00,000/ from the complainant and as per his demand accused had issued 35 cheques. It is case of accused that at the instance of complainant he issued last cheque i.e. 35th cheque as blank signed security cheque and remaining each cheque was filled as Rs. 3,335/. It is further case of accused that he paid Rs. 20,000/ in cash to the complainant and he had signed an agreement at the time of taking loan of Rs. 1,00,000/ without being aware as to who had signed the same on behalf of complainant. Thus, accused pleaded that complainant misused blank signed cheque by filing present complaint case after manipulation of the same.
7. CW1 (complainant) during his cross examination admitted that Rs. 1,00,000/ loan was given by him to the accused and 09 cheques were given in one time and thereafter 25 cheques had also been given in respect of aforesaid loan of Rs. 1,00,000/. It is also admitted by the complainant during his cross examination that 21 cheques amounting to Rs. 3,335/ each had been cleared and Rs. 20,000/ had been given in cash to him. It is stated by the complainant Page No. 5 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
6during his cross examination that interest at the rate of 1.5 % per month was fixed for aforesaid loan of Rs. 1,00,000/. It was suggested during cross examination of complainant that 34 cheques amounting to Rs. 3,335/ each were given and 35th cheque was given signed blank cheque for the purpose of claiming interest. However, complainant replied to the same in negative. CW2 and CW3 are formal bank witness.
8. DW1 Sh. Hare Kishan Jha stated on SA that accused has taken loan of Rs. 1 lakh at the rate of interest of 1.5 % per month and accused had given 35 cheques out of which 34 of Rs. 3,335/ each and 35th cheque was signed blank security cheque. During cross examination DW1 stated that loan of Rs. 1,00,000/ was taken by the accused in his presence at Khanpur Delhi alongwith some Mr. Sharma. It is further stated by the DW1 during his cross examination that no one else than Mr. Digamber Jha (accused signed) loan agreement Ex. CW1/H at the time of taking of loan of Rs. 1,00,000/.
9. Complainant in para no. 7 of his affidavit stated that accused had given reply to his legal demand notice dt. 30.08.2005 stated he had taken loan of Rs. 1,00,000/ and issued 35 cheques including one blank signed security cheque in question. It is further stated by complainant in same para of his affidavit that wife of deponent had executed an agreement Ex. CW1/H with accused on 03.05.2002 and accused had issued only 9 cheque amounting to Rs. Page No. 6 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
73,335/ each and same were honoured, meanwhile, the accused again demand a loan of Rs. 2,00,000/ and deponent had advanced the same to accused no. 2 namely Digamber Jha. It is also stated by complainant in same para of his affidavit that after some time accused issued one post dated cheque in question of Rs. 2,00,000/ and after that accused also issued 25 cheques amounting to Rs. 3,335/ each in favour of wife of deponent.
Here, complainant failed to explain why he advanced alleged loan of Rs. 2,00,000/ to the accused without any loan agreement or receipt or pronote with whom his wife had admittedly executed loan agreement Ex. CW1/H with the accused. Complainant further failed to explain why he advanced such huge amount of loan to the accused even before full repayment of previous loan of Rs. 1,00,000/. Complainant also failed to explain the need and purpose of loan taken by accused. In view of admitted fact of issuance of 35 cheques by the accused to the complainant or his wife, misuse of one cheque out of them can not be ruled out absolutely. Here, it is noticeable that signature and remaining content appearing on cheque in question had been written with different pen, which shows cheque in question might have been given as signed blank cheque.
10. It is cardinal principle of criminal law that complainant/prosecution has to prove his case beyond all shade of reasonable doubts. Here, onces accused managed to probablies his defence by creating probable doubt over the veracity of story of complainant, complainant must prove his/her case as a matter Page No. 7 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.
8of fact beyond or reasonable doubt and complainant can not be allowed to prove the same by taking benefit of the lacuna in the defence of accused. Moreover, court is also aware of the legal tenant of criminal jurisprudence as to any benefit of doubt must be given in favour of accused.
11. In view of above discussion of the facts and circumstances of the case and applicable legal provisions and principles this court is of considered opinion that accused has probablized his defence with standard of balance of probability by creating probable doubt over existence of legally enforceable liability towards complainant in discharge of which the alleged cheque in question was allegedly issued. Accordingly accused stands acquitted.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 7th Day of May, 2012 MM, NI Act, (East)
KKD Courts, Delhi.
Page No. 8 To 8 Anil Kumar Saini Vs. Anuradha Thread & Anr.