Delhi District Court
Vinod Kumar Jain vs . Dharmender Kumar Jain Cc No.1484/10 on 9 July, 2012
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
Vinod Kumar Jain Vs. Dharmender Kumar Jain CC No.1484/10
09.07.2012
Judgment u/s-264 CrPC Complainant has filed the present complaint on the basis of a dishonored cheque of Rs.1,20,000/- received in lieu of friendly loan given to the accused. The said cheque when dishonored for reason payments stopped by the drawer, the complainant sent a legal demand notice but the accused failed to pay the amount. Hence the instant complaint. The complainant filed his affidavit to establish the ingredients of Section-138 NI Act. The cheque Exh.CW1/1, Dishonored Memo Exh.CW1/2, Legal Demand Notice Exh.CW1/3, Registry Receipt Exh.CW1/4, UPC Ex.CW1/5, A.D.Card Ex.CW1/6.
2. When notice was framed against the accused, he did not plead guilty and claimed trial. He cross-examined the complainant. Accused taken a defence that blank signed cheque was given to the complainant in business transaction for purchasing two bills and that even reply to the legal demand notice was also given. However, accused on his own volition chose not to lead defence evidence.
3. Both the parties have been heard.
4. In legal demand notice, complaint and affidavit, the complainant has maintained that a loan of Rs.1,20,000/- was advanced to the accused in discharge of which accused had issued the instant cheque. In the cross-examination, however, the complainant failed to stand the scrutiny. Some extracts from the cross-examination of the complainant are given hereunder:
"I did not give the cheque amount in the sum of Rs.1,20,000/- to the accused by cash or by cheque. Vol. : There was some business dealing between me and the accused and the outstanding amount was Rs.1,20,000/- against which accused had given the cheque and the accounts were settled. It is correct that I have not given any loan of any amount to the accused."
"The transaction was routed through cash and only once in a while through bank. The business dealing were carried on between me and the accused approximately one year. It is correct that our inter-se-accounts of business etc. with the accused were settled on 31.01.2007. Vol.: It were settled by the end of Feb,2007."
"I had gone through the contents of my legal notice, complaint and my evidence by way of affidavit before getting them sent and filed in court and I was fully Vinod Kumar Jain Vs. Dharmender Kumar Jain CC No.1484/10 1 aware about the contents of the same. It is wrong to suggest that my notice, complaint as well as evidence was drafted and filed by my advocate and I had just signed the same without reading and knowing the contents thereof. It is correct that I have mentioned in my legal demand notice, complaint as well as in my evidence of affidavit that I had given a friendly loan to the accused of Rs.1,20,000/-."
A portion from earlier cross-examination was confronted to the complainant by the accused in cross-examination on subsequent dates. The said portion was the same as indicated in the first sub-para above. The complainant admitted the position about contradiction and voluntarily explained the same in the following terms:
"(Vol. I had made the statement in the earlier cross-examination dated 06.12.2010 as PDCs were received from the accused when account was finalized and, therefore, there was no loan advanced to the accused)."
5. From the above, it becomes clear that no loan was advanced by the complainant to the accused. Complainant has not approached the court with clean hands. On this count alone, the complaint is liable to be dismissed.
The accused had taken the same defence at the first available opportunity i.e. by sending a reply of legal demand notice. The accused confronted the said legal demand notice to the complainant in the cross-examination as Exh.CW1/DX2, Registry Receipt Exh.CW1/DX3 and AD Card Exh.CW1/DX1. The complainant, however, declined to have received the said reply. Again complainant cannot be believed. Complainant accepted that that AD Card Exh.CW1/DX1 bears the signature of his daughter who was residing with him at the relevant point of time. However, the complainant given a version that he had received two blank papers in the envelope and not any reply of the legal demand notice. On this count also, complainant cannot be believed. He had not disclosed any such factum in his complaint or affidavit and even denied the receiving of any reply but it appears that only to escape from the position which occurred on accepting the signature of his daughter on the AD Card.
6. Complainant has relied only upon mandatory presumptions of law. Complainant has relied upon 171 (2010) DLT 51 and a judgment of Hon'ble Supreme Court of India in Rangappa Vs. S. Mohan dated 07.05.2010. The complainant has not examined any witness to prove the advancement of loan. No doubt there are mandatory presumptions of law but the same 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 to believe its non existence, the complaint has to fail. It is well settled law that even if two view are possible, the court should adopt the view which does not interfere in the life and liberty of any person. (See a constitution bench judgment of Hon'ble Supreme Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984 AIR 1622).
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7. The mandatory presumptions should be raised in furtherance of case of the complainant and not otherwise. 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 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."
8. The complaint fails. Accused is acquitted from the charges in the present complaint case.
9. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh)
MM (NI Act)-01, Central District, Delhi
09.07.2012
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