Delhi District Court
Complainant vs . on 8 October, 2015
IN THE COURT OF SHRI PUNEET PAHWA
METROPOLITAN MAGISTRATE 01 (N.I. ACT)
PATIALA HOUSE COURTS : NEW DELHI
A.B. Handa
S/o Late Tara Chand
Flat No.3103/C3,
Vasant Kunj,
New Delhi110070.
....................... Complainant
Vs.
Anil Kumar Bhola,
R/o 251/4A, Bhola Nath Nagar,
Gali No.5, Shahdara,
Delhi110032.
ALSO AT
22, Indira Park,
Krishna Nagar,
New Delhi.
...................................Accused
Case Number. : 3427/1
Case No.3427/1 Page No. 1 of 15
Date of Institution of Present Case. : 14.10.2011
Offence Complained Of. : U/s 138 NI Act
Plea of the Accused. : Not Guilty
Arguments Heard On. : 27.08.2015
Final Order. : Acquittal.
Date of Judgment. : 08.10.2015
− :: JUDGMENT ::
1.Vide this judgment, I shall dispose of the present complaint filed by the complainant u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I Act").
2. In brief the facts of the case are that the complainant is a retired Govt. servant from Air India whereas, the accused is running a jewellery business at Shahdara, Delhi. The accused and the complainant are known to each other for the last 42 years, as the accused is relative of the complainant. It is the case of the complainant that in the month of March, 1999 the accused approached him and requested to advance some money to him for his business as he was having some financial crunches at that time.
Case No.3427/1 Page No. 2 of 15On repeated requests of the accused the complainant gave a sum of Rs.35,000/ on one occasion and thereafter at different intervals gave money to the accused against proper receipts. The said money was paid upto August, 2005.
3. It has been alleged that when the complainant requested the accused to return back the money given by him, the accused started prolonging the requests of the complainant on one pretext or the other. Thereafter in the month of January, 2008 the complainant asked the accused to return the entire money forthwith otherwise he would take legal action against him. Then again the complainant approached the accused in the month of June, 2008 and November, 2008 for return of the money. But instead of returning the money, the accused shouted at the complainant and used abusive language and heated words were exchanged between them. But with the intervention of the other shopkeepers, an oral settlement was arrived at between them on 01.01.2009 to the effect that the accused would give a post dated cheque of Rs.19,50,000/ and after that the complainant would hand over all the original money receipts to the accused.
4. It has been alleged in the complaint that in pursuance of the settlement, the accused on 05.01.2009 issued a post dated cheque Case No.3427/1 Page No. 3 of 15 of Rs.19,50,000/ to the complainant which was payable on 01.03.2011 i.e. nearly about two years post dated. But when the said cheque was presented for encashment, the same was returned back unpaid for the reasons "funds insufficient", vide return memo dated 25.08.2011. Thereafter, the complainant got issued a legal demand notice dated 02.09.2011 to the accused calling upon him to make the payment of the cheque amount within 15 days of receipt of the notice. However, when the accused failed to make the payment despite expiry of 15 days notice period, the complainant was constrained to file the present complainant u/s 138 of N.I. Act.
5. The complainant has filed his evidence by way of affidavit Ex. CW 1/2. He has also relied upon the following documentary evidence: the cheque in question Ex. CW 1/A; cheque returning memo Ex. CW 1/B; legal demand notice Ex. CW 1/C, postal receipt Ex. CW 1/D (Colly) and the complaint is Ex. CW 1/1.
6. On finding a prima facie case, the accused was summoned. Notice u/s 251 Cr. P.C was served upon the accused on 30.03.2012. His defence plea was recorded and finding his defence plea to be plausible, he was called upon to lead his evidence. But when even after availing several opportunities the accused failed to crossexamine the complainant witness, his right to crossexamine Case No.3427/1 Page No. 4 of 15 the complainant witness was closed vide court order. Thereafter, statement of the accused u/s 313 Cr. P.C was recorded on 20.03.2014 and the matter was fixed for DE. In his defence the accused has examined Sh. Vijay Pal Singh, Sr. Manager, UCO Bank, Krishna Nagar Branch, Delhi as DW 1. The accused also examined himself as DW 2. The accused has relied upon the following documentary evidence: Certificate issued by UCO Bank Ex. DW 1/1; His Account Statement; Certified copy of the complaint u/s 138 of N.I. Act, filed by the complainant against the accused in some other court Ex. DW 2/1; Evidence tendered by the complainant in that court Ex. DW 2/2; Evidence of defence witness given in that court Ex. DW 2/3; One certificate issued by UCO Bank which was deposited by the concerned witness in that court Ex. DW 2/4. After his examination DE was closed, arguments were heard and the case was fixed for orders.
7. Ld. Counsel for the complainant has argued that the complainant has been able to prove guilt of the accused beyond all reasonable doubt whereas the accused has failed to lead any cogent evidence so as to rebut the presumptions raised against him and, therefore, the accused is liable to be convicted. Ld. Counsel for the complainant has argued that the time when the loan was advanced to the accused has been duly mentioned in the complaint and also the complainant has been able to satisfactorily explain his source of Case No.3427/1 Page No. 5 of 15 income and, therefore, there is sufficient material on record to prove the guilt of the accused beyond all reasonable doubt. On these grounds Ld. Counsel for the complainant has prayed for conviction of the accused. Ld. Counsel for the complainant has relied upon the following case law i) Vijender Singh Vs. Eicher Motors Ltd. & Anr. CRL. M.C. No.1454/2011; ii) Sunita Dubey Vs. Hukum Singh Ahirwal 2015 ALLMR (Cri.)346; iii) Suresh Chandra Goyal Vs. Amit Singhal, Crl. L.P. 706/2014, decided on 14.05.2015 and Lekh Raj Sharma Vs. Yash Pal Gupta Crl. L.P. 567/2014, decided on 30.06.2015.
8. On the other hand Ld. Counsel for the accused has argued that the cheque in question was never issued in discharge of any legally recoverable debt or liability. The complainant and the accused were very well known to each other being relatives and the cheque was issued on assurance of the complainant that he would make necessary arrangements for sending the accused to U.S.A. But since the complainant did not honour his commitment there was no occasion to present the cheque for encashment and thus it can be said that the cheque was issued without any consideration. Ld. Counsel for the accused has further argued that the complainant lacks material particulars as it has not disclosed as to exactly what amount was paid by the complainant to the accused Case No.3427/1 Page No. 6 of 15 and to discharge what liability the cheque in question was issued. Moreover, no source of income has been disclosed which in itself is sufficient to rebut presumptions raised against the accused. On these grounds Ld. Counsel for the accused has sought acquittal of the accused. Ld. Counsel for the accused has relied upon the following case law: Capital Syndicate Vs. Jameela 2003 (2) Crimes 122; ii) Joseph Vs. Devassia 2001 (3) Crimes 229; iii) Girdhari Lal Rathi Vs. PTV Ramanujachari 1997 (2) Crimes 658; iv) B. Mohan Krishna & Ors Vs. Union of India & Ors. WP No.101/1990, decided on 27.01.1995; v) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [Appeal (Cri.) 518/06]; vi) M.S. Narayana Menon Alias Mani Vs. State of Kerala & Anr. (2006) 6 SCC 39 and vii) Narender Singh & Anr. Vs. State of M.P. (2004) 10 SCC 699.
9. Arguments heard and file perused.
10. Bare perusal of Section 138 of the NI Act clarifies that five essential ingredients for completing the offence under Section 138 of the Act are as below:
i) Issuance of the cheque in discharge of a legally recoverable debt or liability;Case No.3427/1 Page No. 7 of 15
ii) Presentation of the cheque with the bank;
iii) Returning of the cheque unpaid by the drawee bank;
iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and
v) failure of the drawer to make payment within 15 days of the receipt of the notice.
11. It is pertinent to mention here that there are two presumptions of law as mandated by the Negotiable Instruments Act. According to Section 118 (a) of the Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the promissory note was made for consideration or until the contrary is proved.
12. According to Section 139 of NI Act "it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability." Under Section 139 NI Act there is a legal presumption that the cheque was issued for discharging a liability and that presumption can be rebutted only by the person who drew the Case No.3427/1 Page No. 8 of 15 cheque. This presumption can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused.
13. The first and foremost ingredient of Section 138 N.I. Act is that the cheque in question must have been issued in discharge of legally enforceable debt or liability. It is also a settled law that to rebut the presumptions raised against the accused, the onus of the accused to prove the same is merely preponderance of probabilities and once this onus is discharged, it shifts back upon the complainant to prove the guilt of the accused beyond all reasonable doubt.
14. I have gone through the case law cited by both the parties, perused the record and heard the arguments. Basically the defence raised by the accused at the time of framing of Notice and also in his statement u/s 313 Cr. P.C was that the complainant is maternal uncle of the accused and he had assured the accused to make necessary arrangements for his travel to USA and for the said purpose only the accused had handed over the said cheque to the complainant. The said cheque was given to the complainant as security only that too in the year 2001 and it was agreed between them that the complainant would present the cheque for encashment only after the accused is sent to USA by the Case No.3427/1 Page No. 9 of 15 complainant. The accused has very categorically denied his liability towards the complainant.
15. Although the accused has failed to crossexamine the complainant yet the accused himself stepped into the witness box and deposed that the complainant is his uncle. He further deposed that the complainant used to send people abroad and two cheques were given to the complainant on asking of the complainant as he had told him that some money would be spent for sending him to USA. But the complainant did not send him to USA and presented the cheque for encashment.
16. After his examination he was crossexamined by Ld. Counsel for the complainant however, no contradiction whatsoever came out in his crossexamination. In fact he was not even cross examined with respect to the defence raised by him. The accused also examined Sh. Vijay Pal Singh, Sr. Manager UCO Bank as DW 1 who had brought a certificate issued by the UCO Bank Ex. DW 1/1. As per the certificate, the cheque in question was issued to the accused on 29.10.2001 alongwith series of 20 cheques starting from 145841 to 145860. Therefore, as per the statement of DW 1 and this certificate it is clear that the cheque in question was issued to the accused by his banker on 29.10.2001 and after that other Case No.3427/1 Page No. 10 of 15 cheques were issued to the accused. DW 1 has not been cross examined by Ld. Counsel for the complainant on this aspect. Hence, this defence of the accused can be said to have remained unrebutted by the complainant. Hence, it can be said that admittedly the cheque in question was issued to the accused in the year 2001.
17. After going through the record it can be said that the accused has been able to rebut the presumptions raised against him by leading positive evidence whereas the complainant has failed to prove guilt of the accused beyond all reasonable doubt. The reasons for the same have been discussed in the following paragraphs.
18. If we carefully peruse the complaint, it is clear that the complaint lacks material particulars. If for a moment it is presumed that whatever is stated in the compliant is true then also guilt of the accused can not be said to have been established by any means. A bare perusal of the complaint shows that only a sum of Rs.35,000/ was given by the complainant to the accused. It is not understandable as to if the complainant had actually advanced such a huge amount of money to the accused then what stopped him from mentioning the same in his complaint. It puts great doubt Case No.3427/1 Page No. 11 of 15 upon the case of the complainant and strengthens the defence of the accused. In fact the legal demand notice issued by the complainant also does not disclose any detail as to in discharge of what liability the cheque in question was issued by the accused. Similarly in his affidavit also it has not been disclosed as to what amount was actually given by the complainant to the accused and in discharge of what liability the cheque in question was issued. It is not believable as to for an amount of Rs.35,000/ the accused would issue a cheque of Rs.19,50,000/. An amount of Rs.19,50,000/ by no stretch of imagination can be said to be a small amount so that the complainant was not able to recall the details as to when the said amount was given to the accused. Moreover, the complainant has also failed to bring any document on record to substantiate his claim or to show his source of income from where he had arranged such a huge amount of Rs.19,50,000/. As per his own case he was a retired Govt. Servant then how he could arrange such a huge amount is doubtful. In the absence of any evidence the story put forth by the complainant can not be believed.
19. I have gone through the case law cited by Ld. Counsel for the complainant. But none of the case law is applicable in the present complaint as facts of those case law are materially different from the case under consideration.
Case No.3427/1 Page No. 12 of 1520. In Vijender Singh Vs. Eicher Motors Ltd. & Anr. (supra), the accused had filed a petition u/s 482 Cr. P.C for quashing of complaint case during pendency of the trial. The petition was dismissed. Since the judgment in this case was not final decision and it was passed on the basis of petition u/s 482 Cr. P.C that too, during pendency of the trial, the same can not be said to have given any assistance so far as the present complaint is concerned.
21. Similarly the judgment Sunita Dubey Vs. Hukum Singh Ahirwal (supra), was passed in a revision petition filed against the order vide which the application u/s 45 of Evidence Act was dismissed. Therefore, this judgment is also not applicable in the present case.
22. The other judgment Suresh Chandra Goyal Vs. Amit Singhal (supra) is also not applicable in this case as in that case there was a MOU and it was executed between the parties, which was duly proved by the complainant and on this basis the judgment of acquittal was set aside by Hon'ble High Court, which is not in the present case.
23. Lastly the judgment titled as Lekh Raj Sharma Vs. Yash Pal Gupta (supra) is also not applicable as in that case there were Case No.3427/1 Page No. 13 of 15 promissory notes executed by the accused which were duly proved by the complainant.
24. In Kamala S. Vs. Vidyadharan M.J. 2007 III AD (SC) 184, the Hon'ble Supreme Court again held that standard of proof in discharge of the burden in terms of section 139 of the Act being of preponderance of probabilities, the inference therefore can be drawn not only from the material brought on record but also from the reference to the circumstances upon which the accused relied upon. Categorically stating that the burden of proof on accused is not so high as that of the prosecution.
25. Again in Kumar Exports Vs. Sharma Carpets 2009 II AD (SC) 117, the Hon'ble Supreme Court held that accused in a trial under section 138 of the Act has two options to rebut the presumptions. He can either show that consideration and debt did not exist 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 presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not Case No.3427/1 Page No. 14 of 15 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 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.
FINAL ORDER
26. In the present complaint no documentary proof has been furnished by the complainant. Hence, it can be said that the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt whereas, the accused has been able to rebut the presumptions raised against him. Accordingly, the accused stands acquitted of offence u/s 138 N.I. Act.
27. Now put up compliance of provisions of Section 437A Cr. P.C. Announced in the open Court on 8th October, 2015 (PUNEET PAHWA) MM (NI ACT1) PATIALA HOUSE COURTS NEW DELHI Case No.3427/1 Page No. 15 of 15