Delhi District Court
Sarvar Kumar vs Harmeet Sheru Aangrish on 11 January, 2019
IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
New CC No.:4995082/16
OLD CC NO.69/2016
Under Section 138 of N.I. Act
In the matter of:
SARVAR KUMAR
S/o Shri Chand
r/o House no.40, C Block,
Vinoba Enclave,
Jharoda Kalan Road,
Najafgarh,
New Delhi.
... Complainant
Versus
HARMEET SHERU AANGRISH
s/o Shri Om Prakash Aangrish
r/o House no.3216/ Urban Estate,
Phase II, Dugri,
Ludhiana, Punjab.
... Accused
Date of Institution : 20.01.2016
Date on which judgment was reserved : 30.11.2018
Date of Judgment : 11.01.2019
JUDGMENT
1. Shorn off unnecessary details, the case of the complainant as narrated in the complaint is that the accused developed friendly relations with the complainant through a SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 common friend. On one occasion, the accused was in dire need of money and therefore, the accused requested the complainant for a friendly loan of Rs.20 lacs. Acceding to the request of the accused, on 11.09.2015, the complainant advanced sum of Rs.20 lacs to the accused as a friendly loan. At the time of advancement of loan, the accused had promised that the same shall be repaid within a period of one month. After expiry of the agreed period of one month, the complainant requested the accused to repay the loan amount. On 29.10.2015, the complainant met the accused and demanded the repayment of loan amount. Therefore, in order to discharge his legal liability to repay the loan amount of Rs.20 lacs, the accused issued a cheque bearing no.000038 dated 26.11.2015 for a sum of Rs.20 lacs drawn on Bank of India, Ludhiana, SSI Branch, Punjab Ex.CW1/1 (hereinafter called as cheque in question) to the complainant. At the time of issuance of the cheque in question, the accused had assured the complainant that the cheque shall be honoured at the time of its presentation. Accordingly, as per the instructions of the accused, the complainant presented the cheque in question for encashment on 27.11.2015 which to the despair of the complainant, got dishonoured on presentation with the remarks ''Account Closed'' vide cheque return memo dated 30.11.2015 (Ex.CW1/2). Thereafter, the complainant immediately tried to contact the accused. However, the accused did not pay any heed to the request of the complainant and failed to make payment within the stipulated period. This constrained the complainant to send a legal notice dated 10.12.2015 (Ex.CW1/3) to the accused. The said legal notice was duly served on the accused, SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 the same went unheeded and this led to the filing of the present complaint.
2. Cognizance of the offence under Section 138 NI Act was taken against the accused and summons were issued. The accused entered appearance. Notice under Section 251 CrPC was framed against the accused on 05.12.2016 to which he pleaded not guilty and claimed trial. In his plea of defence, the accused submitted that he is not having any acquaintance with the complainant and therefore, there is no question of any liability towards the complainant. The accused admitted that the cheque in question bears his signatures and the same was handed over by him in a blank signed condition to his father. The accused disclosed that his father was having a liability of Rs.12 lacs towards the complainant and the same has already been discharged.
EVIDENCE OF THE COMPLAINANT
3. In Post Summoning Evidence, the complainant chose to examine himself as sole complainant's witness and appeared as CW1 and adopted his Pre-Summoning Evidence tendered by way of affidavit Ex.CW1/A.
4. In his cross examination, the complainant deposed that the loan amount was advanced to the accused at the instance of his friend namely Sandeep. The complainant admitted that he does not know the accused directly, but knows the accused through the said Sandeep Kumar. It was the version SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 of the complainant in his cross-examination that, in the year 2015, his friend Sandeep had requested him to advance money to the accused and therefore at his request, he had advanced the alleged loan. The complainant also deposed that his friend Sandeep also stood as a guarantor in respect of the loan in question. The complainant admitted that no written agreement was executed between the parties in respect of loan transaction. The complainant deposed that out of the loan amount of Rs.20 lacs, sum of Rs.7-8 lacs was borrowed by him from his friend. However, the complainant failed to disclose the name of his friend(s) from whom he had collected / borrowed the money amounting to Rs.7-8 lacs which was subsequently used for advancement of loan amount. The complainant testified that he was earning Rs.15-17 lacs from agriculture. The complainant admitted that he is not having the phone / mobile number of the accused with him and he has never directly contacted the accused. The complainant also admitted that he is not having any knowledge regarding the residential details of the accused. It was deposed by him that the legal demand notice was sent by him to the accused at the address which was disclosed by his friend Sandeep. It was the version of the complainant in his cross examination that the said Sandeep, who was a common friend of both, complainant and the accused, had called the accused at his office. There the complainant had met the accused and had demanded the repayment of loan amount.
5. The complainant categorically testified that the accused had came to his office on 29.10.2015 and had himself handed over a duly filled cheque in question to him. The SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 complainant denied the suggestion of the accused that he had advanced a loan of Rs.12 lacs to the father of the accused and that the cheque in question was taken as a security by him from the father of the accused and that the said loan has already been repaid.
DEFENCE OF THE ACCUSED
6. The version of facts as are discernible from the plea of defence recorded at the stage of framing of notice, from the cross-examination of the complainant, during the statement of accused under section 313 CrPC is that the accused is not having any acquaintance with the complainant and therefore, there arises no occasion of having taken any loan amount from the complainant. The accused has denied the fact of having issued the cheque in question to the complainant. It is the version of the accused that he had handed over the cheque in question in blank signed condition to his father and his father might have handed over the cheque to the complainant as security for the loan which was advanced by the complainant to the father of the accused.
7. The accused appeared as DW1. In his testimony, the accused deposed that he has never met the complainant. The accused testified that in the year 2013, his father (who later appeared as DW2) had taken loan of Rs.12 lacs from the complainant and at the time of advancement of the loan, the cheque in question was handed over by his father as a security cheque to the complainant without the consent or knowledge of the accused. It was deposed by the accused that at the time of SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 alleged handing over of the cheque in question, he was not in India, but was in United States of America (USA). In his cross- examination, the accused admitted that the cheque in question bears his signatures. The accused admitted that he had came to India in year 2015. However, it was deposed by the accused that during the relevant period, when the cheque was allegedly handed over to the complainant, he was not in India.
8. One Shri Om Prakash, father of the accused appeared as DW2. DW2 corroborated the testimony of DW1 / accused and testified that he had taken loan of Rs.12 lacs from the complainant in year 2013 for some business purpose. It was testified by DW2 that he had repaid sum of Rs.16 lacs in cash in month of April / May 2015 to the complainant towards the loan which was taken in the year 2013. The witness also brought on record a copy of bank statement of M/s G Tech Engineers Pvt Ltd., of which, he was a director to corroborate and prove his assertion that he had repaid sum of Rs.16 lacs in cash to the complainant. The witness also deposed that he had handed over a blank signed cheque which was drawn on the bank account of his son as security to the complainant. The witness also brought on record the copy of original passport of the accused (Ex.DW2/1) to show that on 28.10.2015, his son (accused in the present case), was not in India, but was in New Jersey, USA. In his cross- examination, the witness admitted that he has not shown the loan transaction that took place between him and the complainant in year 2013, in his income tax returns.
9. The factual position being thus, now let us quickly SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 run through the legal benchmark which is to be satisfied in order to constitute an offence u/s 138 NI Act-:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) that a cheque should have been issued for discharge, in whole or in part, or any debt or other liability.
(iii) that the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier.
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10 Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied, that a person who had drawn the cheque can be deemed to have committed an offence under section 138 of NI Act.
11. In the present case, the accused has denied the fact of having taken the alleged loan of Rs.20 lacs from the complainant or that he had issued the cheque in question to the complainant to discharge any legal liability for repayment of loan. Contrary to the claim of the complainant, the version of the accused is that he is not having any acquaintance with the SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 complainant.
12. File perused and arguments heard. After going through the record and hearing submission advanced by Ld. Counsel for the accused, the only issue which arises for consideration is whether the cheque in question has been issued by the accused in discharge of legally enforceable debt / liability or not?
13 Let us again briefly recapitulate that the accused has admitted having drawn the cheque in question on a bank account maintained in his name and having signed the same. Once these foundation facts are admitted and a factual base is established, presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises by virtue of Section 118 (A) and Section 139 of the NI Act.
14 As per the scheme of the NI Act, on proof of foundational facts, a presumption arises as to the cheque having been issued in discharge of a legal liability and the burden is on the accused to rebut the said presumption. This clearly is an instance of the rule of ''reverse onus'' in action where it is incumbent on the accused to lead what can be called as ''negative evidence''. Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non existence of liability. Keeping in view, that this is a departure from the cardinal rule of ''presumption of innocence'' in favour of the accused, and also keeping in mind that the negative evidence is SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 not easy to be led by its very nature. It is now fairly settled that the accused can rebut this presumption on a scale of preponderance of probabilities. Lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. Preponderance is superiority in weight. Preponderance of probabilities, simply put means more probably than not and superior in evidentiary weight than the opposite.
15 In 'Rangappa vs Sri Mohan (2010) 11 SCC 441, a three judge bench observed that Section 139 of the NI Act, is stated to be an example of a reverse onus clause which is in tune with the legislator intent of improving the credibility of Negotiable Instruments. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to the dishonour of the cheque.
16. In case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court had held:-
'The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or there non existence was so probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arises under Section 118 and 139 of NI Act''.
17 As discussed above, it is clear that the accused need not discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case, set out by the complaint. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore, the prosecution cannot stand. Or the accused can give his version of the story and say that on the basis of his SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 version, the story of the complainant cannot be believed. In the first situation, the accused has nothing to do except to point inherent inconsistencies in the version of the complainant.
18 So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above, if an accepted signed cheque has been produced the complainant, then there cannot be any inherent lacuna in the existence of the liability. But then, definitely, accused can create some loopholes in the story of the complainant by impeaching the credit of the witness during cross examination. Accused can discharge his burden by demonstrating the preponderance of probabilities coming in its way.
19 Coming to the facts of the present case, it has been the defence of the accused that the accused has never taken the alleged loan of Rs.20 lacs from the complainant and the cheque in question i.e. Ex.CW1/1 has been misused by the complainant. At the same time, it has been vehemently argued on behalf of the accused that the complainant was neither capable nor in possession of sufficient funds to advance such a huge loan and therefore, the whole story of advancement of friendly loan is a complete lie.
20. During the stage of final arguments, it has been further argued by counsel for the accused that the complainant has, in his cross examination made numerous prevaricating statements as regards the nature of relationship between the parties and has also made some damning admissions which itself SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 shows the falsity of the case projected by the complainant and which probablises the defence set up by the accused.
21 Ld. Counsel for the accused has implored the court for thread bare analysis of the cross-examination of the complainant and has submitted that the same shall show inconsistencies in the version of facts deposed by the complainant which go to the root of the matter.
22 I am in concurrence with the above stated submission advanced on behalf of the accused as a thread bare analysis of the cross examination of the complainant clearly shows that there are inherent inconsistencies in the version deposed by the complainant in his examination in chief and what has been testified by him in his cross examination. It is pertinent to mention that in the affidavit filed by the complainant in lieu of examination in chief, the version of the complainant is that the accused had himself requested the complainant for a friendly loan, whereas, in his cross-examination, the complainant testified that the loan was advanced to the accused at the instance and the request of one of his friend namely Sandeep. At the same time, in the complaint and in the affidavit Ex.CW1/1, the complainant had deposed that he had visited the accused number of times for purpose of requesting him to repay the loan amount, whereas, in his cross-examination, the complainant testified that he does not know the place where the accused lives or the address of the accused. Contrary to his deposition in his examination in chief, the accused has deposed in his cross- examination that he has never called the accused and that his SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 friend Sandeep had called the accused. Thus, cumulatively seen, the testimony of the complainant is replete with inconsistencies and therefore, the testimony of the complainant cannot be taken as gospel truth and has to be taken with a pinch of salt. The testimony of the complainant is not worthy of acceptance at its face value.
23 This suspicion on the testimony of the complainant gets emboldened as the accused has failed to examine his friend Sandeep, who is a material witness. Perusal of the testimony of the complainant shows that the complainant has himself testified that the loan amount was advanced to the accused at the instance of his friend Sandeep and therefore, non examination of Sandeep, who was a material witness and could have thrown light on the facts of the case is fatal to the case of the prosecution. The said Sandeep, is admittedly, a friend of the complainant and therefore, the complainant was having an opportunity to call Sandep to depose in complainant's favour and corroborate his testimony. Therefore, adverse inference ought to be drawn against the complainant in respect of non examination of Sandeep Kumar.
24 In the instant case, the complainant has asserted to have advanced the friendly loan of Rs.20 lacs to the accused in the month of September 2015. However, at the outset, it appears significant to mention that the fiction of friendly loan is very easy to be weaved, conceived and averred but very hard to be proved and establish. It becomes very captious when stakes are high and stands of the parties are fiercely and frantically SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 brought forth with equal force and fortitude. In the present case, as per the assertions and avernments of the complainant, he was having cash amounting to Rs.11-12 lacs with him at the time, when the accused had demanded the loan amount. At the same time, the complainant has claimed during his cross examination that he is an agriculturist and is also having the agricultural income of Rs.15-17 lacs per annum from agriculture. Thus, it becomes of decisive important to intensely and expansively scrutinize the claim of the complainant.
25 Considering the financial background of the complainant, the amount of Rs.20 lacs is quite high and the capacity of the complainant in advancing such huge amount is needed to be delved deeper and scrutinized arduously. Complainant has stated that he is having agricultural income of Rs.15-17 lacs per annum. However, the complainant has miserably failed to prove his assertion that he is having agricultural income as no evidence of basic operations carried out by him for earning agricultural income has been brought on record.
26. At the same time, no evidence such as land revenue records showing the ownership i.e. no khasra / khatoni in respect of agricultural land in the name of the complainant has been brought on record, no evidence to prove the crop which was produced and sown on such land, no evidence to substantiate the agricultural activity undertaken by the complainant, no evidence supporting the expenses incurred for earning agricultural income have been brought before this court to prove the assertion of SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 earning agricultural income. No income tax returns disclosing the agricultural income being earned by the complainant have been brought on record. Moreover, the basic documents such as ''Form 'J'', which are ordinarily received by an agriculturist at the time of sale of agricultural produce showing the receipt of money / cash have not been brought on record. Thus, in the absence of any evidence, much less cogent, the assertion of the complainant of earning agricultural income is bald and cannot be taken and accepted at the mere ipse dixit of the complainant.
27 At the same time, it is pertinent to mention that during his cross examination, the complainant has testified that he had taken sum of Rs.7-8 lacs from his friends. However, the complainant has failed to even disclose the names of such friends, much less, call those friends to testify in his favour from whom the sum of Rs.7-8 lacs was borrowed by him for purpose of advancing the alleged loan to the accused. This also raises grave suspicion on the story propounded by the complainant.
28 At the same time, it has also been argued on behalf of the accused that the alleged loan that was advanced to the accused, was not advanced in presence of any independent witness. No document was executed at the time of advancement of such an humongous loan amount of Rs.20 lacs and this in itself is sufficient to create doubts in the story of the advancement of friendly loan in cash alleged by the complainant.
29. The argument of Ld. Counsel for the accused is SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 worthy of acceptance as it is quite normal for ordinary prudent person to remain assiduous and watchful while humoring into financial transaction. In the ordinary course of human nature, money matters are considered sensitive enough to demand alert and attentive attendance of human psyche. The degree of alertness and attentiveness, gets bigger and sharper with the increase in the amount and the fragile financial status of the lender which are inversely proportional to each other. In the present case, the complainant has himself admitted in his cross- examination that he is not having deep friendship with the accused and that he had advanced the alleged loan at the instance of his friend, namely Sandeep. Thus, when a huge amount of money has been alleged to have been advanced to a person whose residential details are not even known to the complainant, its all natural for the complainant to come forth with reliable and credible evidence. It appears quite indigestible and implausible to believe that the complainant would advance loan to the tune of Rs.20 lacs without any written contract in the absence of any witness and without securing its repayment. It is relevant to mention here that the complainant has himself admitted in his cross examination that he does not know the accused directly but was known to the accused through his friend Sandeep, and therefore, this fact of non -execution of any written document / contract relating to loan transaction makes way for the entire case set out by the complainant to get enveloped and enamored into the inscrutable smokes of doubt.
30 Therefore, in the light of the above discussion, the theory of handing over of the loan, does not inspire confidence.
SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 A man of even elementary prudence, ought to have kept a documented account of handing over of such a large amount. The non execution of any receipt, document, agreement or maintenance of any books of accounts, dilutes the believability quotient of the complainant's case. The complainant has failed to prove the alleged source of funds or his overall financial prowess / competency before the court. This also renders the friendly loan story unworthy of credence.
31. At the same time, it is the defence of the accused that on 28.10.2015 i.e. the alleged date of handing over of the cheque in question by the accused to the complainant, he was not in India. Thus, the accused has taken the plea of alibi. It is pertinent to mention that in his cross-examination, the complainant / CW1 has categorically testified that on 29.10.2015, the accused had came to his office at Najafgarh, near Gaushala no.2 and had handed over the cheque in question in a duly filled form to him. At the same time, the complainant had categorically denied the suggestion of the accused that on 29.10.2015, the accused was out of India and was abroad. The accused has deposed in his testimony as DW1, that at the relevant time of the alleged handing over of the cheque in question, he was staying in USA. This fact was corroborated by the father of the accused who appeared as DW2. DW2 has brought on record the copy of original passport of the accused (Ex.DW2/1). A mere perusal of Ex.DW2/1 shows that the passport of the accused bears a arrival entry having stamp of 'Immigration' dated 28.10.2015. Thus, this clearly shows that the accused was not in India from 28.10.2015 to 05.11.2015. The complainant has not been able to elicit SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 anything in the cross-examination of the accused or of the father of the accused (DW2) to rebut the fact of the accused having arrived in USA on 29.10.2015. At the same time, not even an iota of evidence, much less cogent, has been brought on record by the complainant to corroborate and prove his assertion that the cheque in question was handed over by the accused to him on 29.10.2015. This also casts a reasonable doubt on the version of the complainant that the cheque in question was handed over by the accused to him on 29.10.2015 at his house and this renders the testimony of the complainant unworthy of credence.
32 In a criminal trial under Section 138 of the NI Act, it is all necessary that the execution of the cheque against the alleged loan should be proved with evidence of irrevocable nature and impeccable character. Mere production of the cheque cannot made the case of the complainant sacrosanct and absolute so as to exempt in from all blemishes and burden. It is trite to say that the cheque as an instrument is very prone to be misused and thus it becomes all necessary for the complainant to come up with cogent and convincing evidence to win over the confidence of the court. In the present case, the complainant has failed to do so.
33 On the other hand, Ld. Counsel for the complainant has laboured hard to pick holes into the defence of the accused by submitting that accused has failed to prove his defence that the cheque in question was handed over to the complainant by the father of the complainant as a security cheque in respect of some loan transaction that took place between the father of the SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 accused and the complainant in the year 2013. It has been argued that the documents Mark A, Mark B and Mark C, which have been placed on record by the father of the accused, are not worthy of credence and therefore, the same has to be eschewed from consideration. Therefore, the counsel for the complainant has implored the court that the inexorable conclusion that can be arrived at is that the accused has failed to bring any plausible evidence to prove the defence taken by him.
34 It is a settled position of law that the case of the complainant should stand on its own leg. It cannot take advantage of the weakness of the defence, nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis. If defence version is incorrect, it does not mean the prosecution version is necessarily correct. Therefore, the contention of Ld. Counsel for the complainant regarding the weak defence of the accused appears to be of no use in sailing through the case of the complainant as accused has made decisive intrusion into the case built up by the complainant by successfully pointing out towards the inherently incurable defects into the web of facts weaved by the complainant.
35. The Hon'ble Apex Court in the epic Judgment passed in the case titled as 'Sharad Birdichand Sarda vs State of Maharasthra' (1984) 4 SCC 116, while discussing the principles of appreciation of prosecution and defence evidence, has held that-
''It is well settled that the prosecution must stand or fall on its own legs and it cannot SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court''.
36 It is all more significant that presumption can only be raised in furtherance of prosecution case and not in derogation of the same. The three judge bench of Hon'ble Supreme Court in a case dealing with prevention of Corruption Act has observed in respect of presumption of law in ''Trilok Chand Jain vs State of Delhi', 1977 AIR 666 as under:-
''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 inception''.
37. Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so, it goes directly to SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that it is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable in nature so as to entail criminal conviction of the accused and which the complainant has failed to bring.
38. In the case of 'Kulvinder Singh vs Kafeel Ahmad'', Crl L. P. 478 of 2011, decided on 04.01.2013, Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
39 At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused ''must be'' guilty and not merely ''may be'' guilty. The mental distance between ''may be'' guilty to ''must be'' guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of the loan. The accused has clearly presented a case which is superior in way. And as per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other. Consequently, the benefit of doubt must go to the SARVAR KUMAR VS HARMEET SHERU AANGRISH New CC No.:4995082/16 accused. The material on record does not suggest that the accused ''must be'' guilty whichever way one looks at it.
40 In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, I hold that the complainant has failed to prove his case. The accused has been able to rebut presumption under Section 118 and 139 NI Act arising in favour of the complainant.
41. In the light of the foregoing reasons, it is clear that the accused HARMEET SHERU AANGRISH has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively. As a result of which, the accused HARMEET SHERU AANGRISH stands acquitted of the offence under Section 138 of NI Act.
42. Copy of digitally signed Judgment be supplied to the accused, free of cost and the copy of be placed on the case file.
43. Bail Bonds under Section 437A CrPC are already on record.
44. File be consigned to RR.
Digitally signed PUNEET by PUNEET
NAGPAL
Decided on 11.01.2019. NAGPAL Date: 2019.01.11
15:38:55 +0530
Announced in open court.
(PUNEET NAGPAL)
MM (NI Act)-01/SW/DWK
New Delhi
SARVAR KUMAR VS HARMEET SHERU AANGRISH
New CC No.:4995082/16