Delhi District Court
Samir Jain vs Sanjay Kumar on 1 August, 2012
THE COURT OF ADDITIONAL SESSIONS JUDGE:
SPECIAL JUDGE (NDPS): WEST / DELHI
PRESIDED BY : SMT. PINKI
IN THE MATTER OF
CRIMINAL APPEAL NO. 21/11
SAMIR JAIN,
S/O SH. DINESH JAIN,
R/O 6-A, INDUSTRIAL AREA,
TILAK NAGAR,
NEW DELHI - 110033 APPELLANT
VERSUS
1. SANJAY KUMAR,
S/O SH. RICHPAL SINGH,
R/O 313/103, TULSI NAGAR,
NEAR INDERLOK,
NEW DELHI - 110018
2. STATE
THROUGH LD. PUBLIC PROSECUTOR
RESPONDENTS
DATE OF INSTITUTION : 16.08.2011
DATE OF RESERVING THE ORDER : 30.07.2012
DATE OF DECISION : 01.08.2012
ORDER
1. Appellant / convict (accused herein) has filed the present appeal on 16.08.2011 impugning the judgement / order on sentence dated 13.07.2011 and 25.07.2011.
CA No. 21/11 Page No. 1/232. Submissions of Sh. Manish Makhija, Advocate Ld. counsel for appellant Samir Jain and Sh. Sayed Sajjad Ali, Advocate Ld. counsel for respondent no. 1 Sanjay Kumar have been heard. Record as well as trial court record and authorities relied on behalf of appellant perused. Respective submissions of either side have been considered.
3. Ld. counsel for appellant has relied on the following authorities:-
1. Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 (1) RCR (Criminal) 695
2. K. Prakashan Vs. P.K. Surenderan, 2007 IX AD (SC) 334
3. Shri Vinay Parulekar Vs. Shri Pramod Meshram, 2008 (3) RCR (Criminal) 580
4. Yeshpal Vs. Vijay Kumar, 2009 (1) Crimes 214 Mad.
5. Kumar Exports Vs. Sharma Carpets, (2009) 2 Supreme Court Cases 513
6. Rosa Maria Fernandes Vs. Nauso N. Kepkar, 2010 II AD (Crl) (Bom.) 177
7. Krishan Bidhuri Vs. ABC Computers & Ors.
Crl. L.P. No. 187/09 dated 23.04.2010 passed by the Hon'ble High Court of Delhi
4. The respondent (complainant herein) has filed complaint case no. 1457/10 on 07.04.2005 for the offence punishable under section 138 of the Negotiable Instruments Act. As per the complaint, the complainant is petty businessman engaged in purchase and sales of CA No. 21/11 Page No. 2/23 solvent oil, thinner, MTO etc. Complainant had business relations with the accused for the last fifteen years and used to regularly make advance payment to him towards supply of material. On 02.03.2005 the complainant paid a sum of Rs. 2,32,700/- to the accused as advance towards supply of material which the accused undertook to make on or before 04.03.2005. Accused did not supply the material to the complainant as agreed upon and on complainant's demand for refund of the advance amount, the accused issued him a cheque bearing no. 590479 dated 07.03.2005 Ex. CW-1/1 for sum of Rs. 2,32,700/- drawn on Bank of India, Tilak Nagar, Delhi-110018. The accused has instructed the complainant to present the cheque for payment on or after 10.03.2005. The complainant presented the cheque for payment through his banker Canara Bank, Tri Nagar, Delhi on 13.03.2005 but it was returned with the remarks that payment has been stopped by the drawer vide return memo dated 15.03.2005 Ex. CW-1/2 and the debit advise of Canara Bank is Ex. CW-1/3. Complainant issued legal notice Ex. CW-1/4 to the accused on 17.03.2005 by registered AD, Courier and UPC which are Ex. CW-1/5, 6 & 7. Corresponding AD card is CW-1/8. On failure of the accused to make the payment within the stipulated period the complaint was filed.
5. Notice was framed on 29.11.2006 for the offence punishable under section 138 of the Negotiable Instruments Act. Complainant has examined himself as CW-1.
6. Statement of accused was recorded wherein he has stated that cheque in question was not issued by him in discharge of any legal CA No. 21/11 Page No. 3/23 debt and liability. The complainant was known to him (accused) as his (complainant) father used to deal with him (accused). The business dealing was during the years 1991 to 1996 and thereafter from 1999 to 2001. There was no business transaction with the complainant and even in these years of business no transaction was over Rs. 32,000/- per consignment. In February, 2005 the complainant approached the accused by giving a telephonic call after a gap of four years. Complainant requested the accused to meet him (accused) to which the accused agreed. Complainant came to the office of accused and told the accused that complainant was going through a bad phase in life and showed his desire to start business in chemicals afresh. Complainant has also requested for the help of accused as accused was in this trade. Accused agreed to help the complainant as much as he could do with his (accused) means. On 24.02.2005 the complainant approached the accused with an offer to sell 10,000 litre of solvent oil @ Rs. 23/- per litre. As the offer was attractive and accused had requirement for the same, accused agreed to buy. The market price of that product was around Rs. 23.50/- per litre. The value of whole consignment was fixed at Rs. 2,32,700/- including the commission to be paid to the complainant with transport charges. The complainant requested the accused to make a cheque of this amount in his personal name to show to the party from whom he was to purchase the material. Accused did not doubt intention of the complainant and wrote a cheuqe of this amount, kept the same with him after showing to the accused. It was agreed that the cheque shall be handed over to the complainant immediately on receipt of the consignment of 10,000 litre of solvent oil. On 10.03.2005 accused was out of his office when the complainant visited his office / godown and CA No. 21/11 Page No. 4/23 apprised his (accused) staff that the consignment was reaching in few minutes. Complainant also requested staff of the accused to give him (complainant) the cheque which was already lying prepared. Staff of the accused knew of this deal and in good faith, believing that the consignment was arriving, handed over the cheque to him, however, no consignment was arrived and the complainant managed to retain this cheque by misrepresenting and by fraud. No material was ever received by the accused and hence this cheque has not been issued for any debt or liability whatsoever. In fact the complainant is guilty of playing fraud on the accused. Complainant has also concealed the factum of reply sent by the accused on receipt of notice from his advocate. The complaint is false.
7. Accused / appellant preferred to lead evidence in his defence. He has examined three witnesses in his support. DW-1 Sh. Surender Chauhan, LDC of Income Tax Office has produced record of income tax return of complainant Sanjay Kumar and as per the record return was filed in Udaypur, Rajasthan prior to the year 2002. He was examined on 20.02.2010. His cross examination was deferred at the request of complainant as Ld. Counsel for complainant was not available.
8. DW-2 Sh. Sameer Jain the accused / appellant. He has deposed that he know complainant as his (complainant) father Sh. Richpal Singh used to deal with them from 1991 to 1996 and thereafter from 1999 to 2001. He has deposed in consonance with his statement recorded by the court. He has also deposed that complainant was to CA No. 21/11 Page No. 5/23 deliver the product by 07.03.2005 which was later extended to 10.03.2005 by the complainant and accused had no objection to the change of date. On 10.03.2005 the complainant informed the accused that consignment would arrive in his (accused) factory at 12 noon as no entry restrictions are removed at that time. Accused waited in his factory till 02:00 PM / 02:30 PM and thereafter he had to go for a meeting. He left his factory. It was in the knowledge of complainant. At around 03:30 PM on 10.03.2005, the complainant came to his factory and told employee of the accused that consignment would arrive shortly and asked for the cheque as employees of accused were aware of the arrangement and also knew the complainant personally as he had been visiting the accused, gave the cheque to the complainant. The complainant remained present in the factory of the accused for about five - ten minutes after receiving the cheque and thereafter on the pretext of tracing the consignment left his factory. Neither the consignment reached factory of the accused nor the complainant came back. After waiting for the complainant and the consignment for about one / one and half hour employees of the accused informed him about as to how the complainant managed to take the cheque from his employee by misrepresentation and fraud. Accused repeatedly called the complainant but he never attended his calls. As the cheque has been taken from the accused by misrepresentation and fraud, accused informed his banker namely Bank of India, Tilak Nagar Branch and requested them to stop the payment against the cheque which the complainant had taken away. DW-2 has also deposed that even as per the complainant's own record of income tax, his annual income has been around Rs. 70,000/- during that time and in no way the complainant CA No. 21/11 Page No. 6/23 could have completed the transaction offered to him. Accused do not owe any money to the complainant against this cheque and in fact it is the complainant who has misused the cheque by filing the false case against the accused knowing fully well that the cheque was without any legally due debt or consideration.
9. DW-3 Sh. Rajesh Kumar has produced the Income Tax Return of the complainant which was filed at Udaypur, Rajasthan prior to the year 2002. He has proved the report Ex. DW-3/A.
10. As per Ex. DW-3/A the income tax return for the assessment year 2004-2005 shows the income as Rs. 65,600/-.
11. The Ld. Trial Court has convicted the appellant / accused for the offence punishable under section 138 of the Negotiable Instruments Act vide impugned order dated 13.07.2011 and sentenced him vide order dated 25.07.2011 to imprisonment till the rising of the court and awarded compensation in sum of Rs. 2,70,000/- to the complainant and in default appellant / convict was held liable to further simple imprisonment of four months
12. The impugned judgement has been assailed on various grounds inter alia that it was the boundant duty of the complainant to prove that he had cash of Rs. 2,32,700/- available with him, which amount the complainant allegedly claims to have advanced to the accused. In the present case the complainant could not even show remotely that he was having the money in his possession either before or CA No. 21/11 Page No. 7/23 at the time of alleged advancement. In the absence of the complainant proving his case, the appellant is liable to be acquitted. The appellant has proved beyond reasonable doubt that the complainant was making a false statement of having the money in cash and that he was not having the amount as claimed. It has also been argued that the Ld. Trial Court has erred in relying upon the sole oral testimony of the complainant that he was having this amount at his home. Complainant's alleged claim is neither corroborated by any other witness nor has the complainant himself been able to show the source of his funding of this large amount allegedly advanced to the appellant. The income of the complainant is only about Rs. 60,000/- during the relevant period. The question arises how could he has advanced such a huge amount of Rs. 2,32,700/-. Complainant did not even insist on taking a receipt. This is not a normal human conduct. The complainant has concealed the reply to the notice under section 138 of the Negotiable Instruments Act sent by the accused. It has not been explained by the complainant as to why he had concealed the reply of accused to his notice. The complainant has failed to disclose the source of money allegedly advanced to the accused. Complainant even does not know whether this amount reflects in his income tax return or not. Complainant has also admitted that he does not maintain any account of his business nor he maintain any ledger book or any other books of accounts. Complainant has admitted that his business firm stood closed way back in 2002 and now he was working as property dealer. Complainant has also admitted that he did not have the requisite licences to deal in the goods and also admitted that he did not had the ware housing facility to store the goods.
CA No. 21/11 Page No. 8/2313. Ld. counsel for appellant has argued that it is crystal clear that complainant was making a false claim before the court and that the complainant was himself guilty of misusing the cheque obtained by him by fraudulent means. The Ld. Trial Court has failed to take note that it was the duty of the complainant to prove his case beyond reasonable doubt and that the standard of proof so as to prove a defence on the part of the accused is preponderance of probabilities. The Ld. Trial Court has erred in holding the appellant guilty and sentencing him under section 138 of the Negotiable Instruments Act as the appellant had proved beyond reasonable doubt that the cheque Ex. CW-1/1 was only drawn as security and not against any debt or liability and that the complainant had managed to take this cheque from the employee of the appellant by misrepresentation. Moreover employee of the appellant could not be examined in the court despite the fact that he appeared twice before the Ld. Trial Court and the witness unfortunately died during the pendency of the case. The Ld. Trial Court has also failed to take the note that the complainant was making a false statement as the complainant could not have even taken delivery of such a huge consignment of oil without a proper ware housing facility. The business of the complainant stood closed way back in the year 2002 and the complainant had no sales tax registration further confirmed the defence of the appellant / accused. It was not the case of complainant that he had made further arrangements to store/sell the consignment allegedly ordered by him and in absence of any positive evidence the whole case of the complainant falls flat on the ground and confirms the defence of the appellant. Ld. Trial Court has erred in concluding that the complainant advanced such a huge amount in cash and as such failed to appreciate that as per law and the income CA No. 21/11 Page No. 9/23 tax rules no person is permitted to pay / receive more than Rs. 20,000/- in cash. The fact that the complainant did not disclose this amount and neither did he had the capacity to show this amount should have alarmed the court. The onus of advancing this money in cash was on the complainant which he miserably failed to show confirming the defence of the appellant. It has further been submitted that complainant has failed to prove that it was debt. The witness of the income tax department is the public witness. The complainant has also admitted reply of accused Ex. CW-1/DA to the legal notice by the complainant. It has also been argued that complainant should stand on his own feet. Accused has to rebut. He has to prove probability. Complainant has to prove his case beyond reasonable doubt.
14. Ld. counsel for complainant has submitted that if the complainant was not in a position to deal with such amount, then he was also not in a position to supply such huge quantity. He has also submitted that statement of appellant is contradictory. Moreover no police complaint was lodged. Complainant was already having money which was kept at home. It was not earning of complainant. Complainant had received share after disposal of property.
15. The contentions urged by Ld. counsel for appellant are not wholly without merit to be lightly brushed aside.
16. The question in controversy in this appeal is whether the Ld. Trial Court has rightly convicted the appellant?
CA No. 21/11 Page No. 10/2317. Para 20, 21, 22 and 23 of judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra) read as under:-
" 20. Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines negotiable instrument to mean a promissory note, bill of exchange or cheque payable either to order or to bearer.
Section 138 of the Act has three ingredients, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre- supposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
" 21. The proviso appended to the said section provides for compliance of 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."
" 22. The courts below, as noticed hereinbefore, 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 CA No. 21/11 Page No. 11/23 approach on the part of the courts, we feel, is not correct."
" 23. 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 records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
18. In para 24 of judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra), judgement Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35 has been referred as under in respect of rebuttable presumption. It reads as under:-
" 24. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] interpreting Section 118(a) of the Act, this Court opined:
Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on CA No. 21/11 Page No. 12/23 the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt." [Emphasis supplied]
19. Para 25, 27, 30 and 34 of judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra) read as under:-
" 25. 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 an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies."
" 27. In M.S. Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant."CA No. 21/11 Page No. 13/23
" 30. In K. Prakashan v. P.K. Surenderan [2007 (12) SCALE 96], this Court following M.S. Narayana Menon (supra) opined:
12. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-`-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
13. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.
In John K. John v. Tom Varghese & Anr. [JT 2007 (13) SC 222], this Court held:
10........The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be CA No. 21/11 Page No. 14/23 absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay installments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken."
" 34. 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 rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 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."
20. It is well settled proposition of law that statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not must be determined keeping in view the other evidence on record. The case where chances of false implication CA No. 21/11 Page No. 15/23 cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. The standard of proof upon a prosecution and upon an accused is different.
21. From all this it is clear that Hon'ble Supreme Court in this judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra) after noticing provisions of section 269 SS of the Income Tax Act, Section 118(b)and section 138 of the Negotiable Instruments Act has observed that any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only. A mandatory presumption is required to be made. Proviso appended to section 138 of the Negotiable Instruments Act provides for compliance of legal requirements before a complaint can be considered by the court. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Negotiable Instruments Act. It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or liability. The accused need not to examine himself for discharging burden of proof placed upon him. Accused can prove the non existence of a consideration by raising a probable defence. If accused has discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to complainant who will prove it as a matter of fact and upon its failure to prove would disentitle the complainant to the grant of relief on the basis of negotiable instrument. The standard of proof to prove a defence on the part of any accused is " preponderance of probabilities" . Inference of preponderance CA No. 21/11 Page No. 16/23 of probabilities can be drawn not only from the material brought on record by the parties but also by reference to the circumstances upon which he relies.
22. Admittedly similar circumstances are in the instant case. No document was executed and there is no receipt. Complainant did not produce any books of accounts or any proof to show that he got so much money from the bank. He has no document in writing from the accused in respect of receipt of Rs. 2,32,700/- as advance towards supply of material.
23. As per order dated 09.03.2011 passed by Ld. Trial Court on application under section 91 Cr.P.C. which was moved by the accused for calling ITR of the complainant, complainant had submitted before the Ld. Trial Court that he has not shown the transaction in question in his Income Tax Return. On that, application of accused was dismissed as withdrawn. It is pertinent to mention that in his testimony dated 21.03.2009 complainant (CW-1) has deposed that he cannot say whether he has shown this cash amount in his returns (ITRs).
24. Complainant (CW-1) in his testimony has admitted that he did not withdraw Rs. 2,32,700/- from any bank. He has deposed that he was having this amount at his home. This cash belongs to him personally and no one in the family had contributed towards it. During the course of arguments it was argued that complainant has received his share after disposal of property. He did not explain how he was keeping so much of money in cash at home especially when in his ITR for the CA No. 21/11 Page No. 17/23 assessment year 2004 - 2005 Ex. DW-3/A income has been shown as Rs. 65,600/-. The complainant was having two bank accounts i.e. in Canara Bank and Punjab National Bank.
25. It is also worth noticing that complainant (CW-1) has also admitted that he was not having any firm for doing business of solvent oil, thinner etc. Even CW-1 was not holding any sales tax registration / VAT / service tax number for doing the business of solvent oil, thinner etc. Though CW-1 admits that for doing business in solvent oil, thinner, MTO etc. licences are required from various departments like Explosives, Fire, Police both local and traffic, MCD and Excise Department but he was not having any licence from any department whatsoever for dealing in such products. He (CW-1) did not have any warehousing / storage facilities for these goods. It is not clear how the complainant was engaged in purchase and sales of solvent oil, thinner etc. without firm / documents, warehousing/storage facilities etc.
26. CW-1 also admits about filing of ITR for the year 2003 - 2004, 2004 - 2005, 2005 - 2006. He has deposed that he did not use to maintain any account of his business. He did not maintain any ledger books or any other books required under Income Tax Act for doing this business.
27. CW-1 further admits that M/s Rich Pal Singh and Company was a proprietorship firm of his father Mr. Rich Pal Singh. He has also admitted that business of this firm stood closed and accordingly they have surrendered sales tax registration in the year 2002.
CA No. 21/11 Page No. 18/2328. CW-1 admits the price of solvent oil during February / March, 2005 as Rs. 23/- per litre approximately.
29. CW-1 has admitted reply dated 08.04.2005 Ex. CW-1/DA to his legal notice. He has deposed that he was not having this reply at the time of filing his complaint. Legal notice dated 17.03.2005 Ex. CW-1/4 was sent on 17/18.03.2005. No cogent reason has been given for not placing reply Ex. CW-1/DA till 21.03.2009 i.e. the date CW-1 was examined.
30. DW-2 Sameer Jain (accused) has duly deposed about his defence. During the course of his cross examination he has deposed that M/s Delta Adhesives and Chemicals is partnership concern. He himself and his mother Alka Jain are partners in this firm. Regarding not filing of police complaint he has explained that because of his good and long relations with the complainant he did not file any police complaint. He has also deposed that he cannot show this transaction in his books of accounts until he receive the material from the complainant. As per income tax rules they cannot accept such a huge amount (Rs. 2,32,700/-) in cash.
31. Judgement titled K. Prakashan Vs. P.K. Surenderan (Supra) is referred in para-30 of judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra). In K. Prakashan's case also the complainant has been found to be not a man of means. He had also not proved that there had been any commercial / business transactions between him and and the appellant. He had not produced the diary in which allegedly he was maintaining the record.
CA No. 21/11 Page No. 19/2332. In the instant case also the ITR of 2004 - 2005 Ex. DW-3/A shows income of complainant as Rs. 65,600/- only. During this period complainant alleged that he advanced a sum of Rs. 2,32,700/-. He has not shown this transaction in his ITR. He was having this amount at his home and it belong to him personally and no one in the family had contributed towards it. He does not have requisite licences for running such business, he does not have sales tax registration / VAT / service tax number, he was not having any firm to do this business, he was not having any warehousing / storage facility for these goods. The facts are similar. The complainant is not man of means to pay a sum of Rs. 2,32,700/- that too in cash as advance even though he was having bank accounts in two different banks when during the relevant period his income is only Rs. 65,600/-. The accused has rebutted the presumption.
33. In judgement titled Shri Vinay Parulekar Vs. Shri Pramod Meshram (Supra), judgement of Hon'ble Supreme Court titled Hiten P. Dalal Vs. Batindranath Banerjee, 2001 (3) RCR (Criminal) 460 has been referred to, wherein it was observed that rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonable probable, standard of reasonability being that of prudent man. In Shri Vinay Parulekar's case it was observed that the complainant has failed to prove that cheque was issued in discharge of any debt due or other liability.
CA No. 21/11 Page No. 20/2334. This case also gets support from judgement titled Yesh Pal Vs. Vijay Kumar (Supra) wherein complainant had failed to produce and prove as to wherefrom he had arranged amount which he advanced.
35. Reliance has also been placed on judgement titled Kumar Exports Vs. Sharma Carpets (Supra). This judgement is not disputed. It is in respect of presumptions. In the instant case also the defence of accused that the cheque was obtained by fraud / misrepresentation becomes probable and the onus of burden would shift on the complainant. The complainant did not produce any documentary proof including licences, sales tax registration / VAT / service tax no. etc. Even transaction has not been shown in the ITR. He does not have any warehousing / storage facility.
36. Judgement titled Rosa Maria Fernandes Vs. Nauso N. Kepkar (Supra) also refers to judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (Supra), Shri Vinay Parulekar Vs. Shri Pramod Meshram (Supra) and Hiten P. Dalal Vs. Batindranath Banerjee (Supra) etc. This judgement is also not disputed. In that case also accused has successfully rebutted the presumption under section 139 of the Negotiable Instruments Act by raising probable defence.
37. Case titled Krishan Bidhuri Vs. ABC Computers & Ors. (Supra) is judgement of our own High Court wherein it was reiterated that mere issuance of a cheque is not sufficient to establish existence of a debt and the complainant has to independently establish the existence of a debt to which the cheque relates. Reference was also made to Krishna Janardhan Bhat's case.
CA No. 21/11 Page No. 21/2338. Arrangement of supply of a material and availability of money are different. Therefore, argument putforth by Ld. counsel for complainant that if complainant was not in a position to deal with such amount, he was also not in a position to supply such a huge quantity has no force.
39. The doubt is being raised to the fact that complainant had cash of Rs. 2,32,700/- at home, especially when he is having accounts in two different banks and more so during the relevant period he has shown his income as per Ex. DW-3/A as Rs. 65,600/- only. He was not having any firm for doing such business, sales tax registration / VAT / service tax number, warehousing / storage facilities. Moreover no document was executed and there is no receipt. Complainant even did not produce any books of account. He did not use to maintain any account of his business. He did not maintain ledger books or any other books required under Income Tax Act for doing this business. Even this transaction was not shown in the income tax returns. Complainant has even surrendered sales tax registration in the year 2002. If complainant had received share after disposal of property it should have been reflected in his income tax return. Not an iota of evidence is on record in this respect. No cogent reason has been explained for not placing on record reply (Ex. CW-1/DA) to legal notice. Nothing has come on record beyond reasonable doubt that the cheque Ex. CW-1/1 was issued against debt or liability. Per contra appellant has rebutted the presumption bringing on record the circumstances that the cheque in question was taken by complainant by way of misrepresentation. The complainant has failed to prove beyond reasonable doubt his case to the effect that he has CA No. 21/11 Page No. 22/23 advanced a sum of Rs. 2,32,700/- and cheque in question was in lieu of that, payment of which was got stopped by accused.
40. As observed from the record especially testimony of complainant (CW-1) / cross examination of CW-1, statement of accused recorded on 22.08.2009, defence evidence, it is clear that the cheque was obtained by fraud / misrepresentation. Doubt is being raised as to the capacity of complainant to advance a sum of Rs. 2,32,700/- to the accused. Onus of burden shift on the complainant. Complainant has failed to prove beyond reasonable doubt that there is legally enforceable debt / liability or that the cheque was drawn from the account of bank for discharge of debt / liability. Hence benefit of doubt is given to appellant / accused. Therefore, the Ld. Trial Court erred in convicting the accused. The impugned judgement / order on sentence dated 13.07.2011 / 25.07.2011 is set aside. Appeal stands allowed. Appellant is acquitted in this case. Bail bond of accused stands intact for a further period of six months in view of provisions of section 437A Cr.P.C.
41. Pursuant to order dated 16.08.2011 passed by Ld. Predecessor of this Court FDR in sum of Rs. 1,50,000/- was placed on trial court record vide order dated 30.08.2011. It be released to the appellant as per rules.
Copy of order be sent alongwith the TCR.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 1st AUGUST, 2012 (PINKI)
ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE (NDPS)
(WEST) DELHI / TIS HAZARI COURTS
CA No. 21/11 Page No. 23/23