Delhi District Court
Jai Bhagwan vs . Hem Chand on 7 June, 2013
IN THE COURT OF SH. TARUN YOGESH : ACJARCCCJ,
PATIALA HOUSE COURTS, NEW DELHI
Jai Bhagwan Vs. Hem Chand
Complaint Case: 19/1/12
U/s: 138 N.I.Act
PS: Connaught Place
Date on which case was instituted : 15/09/2011
Date on which Judgment was reserved : 05/06/2013
Date on which Judgment was pronounced : 07/06/2013
JUDGMENT
a) Sl. No. of the case : 19/1/12
b) Date of commission of offence : August 2011
c) Name of the complainant : Sh.Jai Bhagwan
S/o Sh. Shiv Charan,
R/o VPO Makanpur,
Indirapuram
Ghaziabad, UP.
d) Name of the accused, parentage : Sh.Hem Chand,
S/o Sh. Jai Singh,
R/o 16/200, Dakshinpuri,
Dr. Ambedkar Nagar, New
Delhi
Also at
York Hotel
(Working as Waiter)
1011, KBlock, Connaught
Place,New Delhi 110001
CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.1/29
e) Offence complained of or proved: U/s: 138 of Negotiable
Instruments Act
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
h) Date of such Order : 07/06/2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
FACTS LEADING TO THE FILING OF COMPLAINT CASE U/S
138 R/W 142 OF N.I.ACT, 1881.
1. Complainant Jai Bhagwan has filed present criminal complaint under section 138 of the Negotiable Instruments Act, 1881 (in short "the Act "), against accused Hem Chand alleging that accused had taken a friendly loan of Rs. 1 lakh from him and upon demanding payment, issued cheque bearing no. 503915 dated 26.07.2011 for a sum of Rs. 1,00,000/ (Rs. One lakh only) on his account No. 0129000100513040 with Punjab National Bank, Minto Road Branch, New Delhi which was deposited by him upon the direction of accused in Punjab National Bank, Indirapuram Branch, Ghaziabad, UP for encashment but was returned dishonoured with remarks, "Insufficient Funds" along with returning memo dated 01.08.2011. Accused was informed about the dishonour of cheque telephonically and in person by meeting him at his address, but failed to make any payment. A written legal demand notice dated 08.08.2011 was also sent through counsel by regd. AD and courier CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.2/29 addressed at the official address and the residential address of accused, but despite service of legal demand notice sent at his official address, accused failed and neglected to pay the amount of cheque within statutory period of 15 days and hence complainant filed the present complaint case against accused alleging commission of offence u/s 138 N.I. Act, 1881 by accused.
2. Complainant has filed along with his complaint copy of cheque as Annexure A, copy of return memo dated 01.08.2011 as Annexure B, copy of legal demand notice dated 08.08.2011 as Annexure C, copy of postal receipts as Annexure D, copy of courier receipts as Annexure E, copy of receiving of courier at the official address of accused as Annexure F, copy of AD Card received at the official address of accused as Annexure G, copy of legal notice sent at the residential address of accused through registered post as Annexure H and copy of legal notice sent at the residential address of accused through courier as Annexure I. INQUIRY/ PRETRIAL PROCCEDINGS
3. After assignment of the complaint case filed under section 138 of N. I. Act to this court for 17.09.2011, complainant Sh. Jai Bhagwan examined himself under section 200 Cr PC having tendered his affidavit marked on record as Ex CW 1/1 bearing his signatures at points 'A' and 'B' on 10.10.2011 and relied upon the original documents marked as Ex CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.3/29 CW 1/A to Ex CW 1/I and his complaint filed under Section 138 N. I. Act as Ex CW 1/J. Sh. R.L. Meena, learned Releiver Judge/ PHC/ ND having heard the submissions addressed by learned counsel for complainant and having perused the documents filed on record and tendered during complainant's examination took cognizance of the offence u/s 138 of N. I. Act and directed for summoning the accused.
4. After securing presence of accused Hem Chand, he was admitted to regular court bail and copy of complaint under section 138 N.I. Act and annexures was supplied to him. Since the parties failed to settle their case amicably, so, substance of accusation in the form of written notice u/s 251 Cr.P.C was framed and explained to accused Hem Chand on 04/06/2012 and having understood the substance of accusation, he pleaded not guilty and disclosed his defence stating to have taken loan of Rs.10,000/ from complainant Sh. Jai Bhagwan in the presence of one Navin Chand Joshi on 18.09.2010. Accused claimed to have given a blank signed promissory note and blank signed cheque to complainant for securing the loan amount which complainant assured to return upon repayment of loan amount. Accused further claimed to have returned the loan amount to complainant on 02.11.2010 and alleges that complainant did not return the blank signed cheque and blank promissory note to him, besides claiming not to have received any legal demand notice and has denied any liability to pay any amount to the complainant.
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5. An application under section 145 (2) N. I. Act was filed by accused through defence counsel on the same day on 04.06.2012 stating that complainant has filed a false and frivilous complaint against him and he is not legally liable against the cheque with prayer seeking permission to cross examine the complainant to prove his defence. The application has been heard and allowed by my learned Predecessor MM in view of the judgment of the Hon'ble Supreme Court of India in "M/s Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore" decided on 11.01.2010.
POSTNOTICE / TRIAL PROCEEDINGS:
6. Complainant/ CW1 Sh. Jai Bhagwan has been crossexamined by learned defence counsel Sh. Parikshit Mahipal on 08.11.2012 and he has not examined any other witness to prove his case. After closure of complainant's evidence matter was fixed for recording statement of accused Hem Chand.
7. In his statement recorded without oath under section 313 CrPC on 21.12.2012, accused Hem Chand has denied any liability towards complainant against cheque bearing no. 503915 dated 26.07.2011 for a sum of Rs. 1 lakh, marked as Ex CW 1/5 and reiterated his defence to have taken a loan of Rs.10,000/ from complainant Jai Bhagwan on 18.09.2010 in the presence of Sh. Navin Chand Joshi and having handed CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.5/29 over the blank signed cheque bearing no. 503915 and blank signed promissory note to secure the loan amount as demanded by complainant. He further stated that as per the oral schedule agreed between them loan of Rs.10,000/ was to be returned back after two months and claims to have returned the loan amount of Rs.10,000/ to complainant on 02.11.2010 but complainant did not return back the blank promissory note and the blank signed cheque and also refused to return back those documents. Accused claimed to have refunded the loan amount of Rs. 10,000/ on 02.11.2010 after withdrawal of Rs. 25,000/ from his personal bank account of Kangra Cooperative Bank and also claimed to have made a complainant regarding loss of cheque book and pass book in Police Station Connaught Place on 21.09.2010. He claimed to have made several requests to the complainant for returning back the security blank cheque and blank signed promissory note which complainant refused and also claimed of having not received any legal notice from complainant besides alleging that complainant has misused the blank cheque given to secure the loan by filling the said cheque in his own handwritng with different ink and filed the present false case against him. Accused Hem Chand desired to lead evidence in defence and matter was thereafter fixed for defence evidence.
8. An application under section 315 Cr PC has been filed on record by accused seeking permission to examine himself as defence witness which has been allowed vide order dated 10.04.2013 and accused Hem CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.6/29 Chand examined himself on oath as DW1 and has been crossexamined by learned counsel for complainant. Accused has examined Sh. Navin Chand Joshi, S/o Late Bhola Dutt Joshi as DW2 and the other defence witness has deposed on oath and has been crossexamined by learned counsel for complainant on 04.05.2013. No other witness has been examined by accused to prove his defence and after closure of defence evidence matter was adjourned for final arguments.
9. At the satge of addressing final arguments, an application has been filed on record by complainant Sh. Jai Bhagwan through learned advocate Sh. Trilok Chand praying/requesting the court to summon Manager/concerned official from Punjab National Bank, Minto Road, New Delhi 110001 alongwith statement of account of accused for the period 01.07.2011 to 01.08.2011 in respect of Account no. 0129000100513040 and details of cheque book bearing cheque series no. 503901 to 503920. I have heard rival submissions addressed by advocate Sh. Trilok Chand learned counsel for complainant and advocate Sh. Parikshit Mahipal learned defence counsel representing accused Hem Chand upon the application filed by complainant at the stage of final arguments besides hearing their final arguments/ submissions upon the criminal complaint filed under section 138 N.I. Act. Learned defence counsel for accused in support of his submissions for acquitting accused has relied upon judgment of the Hon'ble Supreme CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.7/29 Court of India pronounced in 2003 (1) DCR 146, in case titled "C. Antony Vs. K.G. Raghavan Nair" .
10. So far as the application filed by complainant Sh. Jai Bhagwan for summoning the concerned Manager/official from Punjab National Bank, Minto Road, New Delhi alongwith statement of account of accused, account No. 0129000100513040 for the period 01.07.2011 to 01.08.2011 and details of cheque book, bearing series no. 503901 to 503920 is concerned, learned Advocate Sh. Trilok Chand submits that the witness is required to produce the statement of account of accused for the above said period as cheque bearing no. 503915 dated 26.07.2011 issued by accused forms part of the cheque book bearing cheque series 503901 to 503920 and being dated 26.07.2011 was issued in the period from 01.07.2011 to 01.08.2011. Learned counsel for complainant further submits that the Manager/concerned official has been mentioned at serial no. 2 in the list of witnesses and is required to be summoned to produce the statement of account of the above said period to impeach the defence of accused of having misplaced the cheque book with cheque leaves. Learned counsel for complainant has pointed/referred to the cross examination of accused Hem Chand and submits that the Bank Manager/concerned official is required to be summoned with the statement of account of accused to prove the falsity of the plea of defence raised by accused.
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11. Adv. Sh. Parikshit Mahipal, learned counsel for accused per contra has opposed the application for summoning Manager/ concerned bank official stating that the application has been filed by complainant at the stage of final arguments to delay the proccedings and even otherwise the statement of account of accused for the period 01.07.2011 to 01.08.2011 and details of the cheque book bearing cheque series 503901 to 503920 are not relevant for deciding the present complaint case filed under section 138 NI Act as complainant has filed his complaint case on the basis of one cheque bearing no. 503915 which was signed by accused and handed over to complainant as blank security cheque alongwith blank signed promissory note at the time of taking loan of Rs. 10,000/ from the complainant on 18.09.2010.
12. Having heard rival submissions addressed by learned counsels for complainant and accused, I am of the considered opinion that summoning of the Manager/concerned Bank official at the stage of final arguments is not required as the plea of defence taken by accused is that the alleged cheque bearing no. 503915 was signed by him and handed over to complainant as a blank cheque alongwith the blank promissory note for securing loan of Rs. 10,000/ purportedly taken by him from complainant on 18.09.2010. Accused Hem Chand claims to have returned the loan amount of Rs.10,000/ to complainant in the presence of DW2 Sh. Navin Chand Joshi and both accused Hem Chand and DW2 Sh. Navin Chand Joshi have deposed on oath that the blank CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.9/29 cheque and blank promissory note handed over to complainant at the time of securing loan on 18.09.2010 was not returned by complainant Jai Bhagwan despite payment of Rs.10,000/ by accused on 02.11.2010. Hence, accused has not raised his defence that cheque bearing no. 503915 was lost/ misplaced and has been filled and misused by complainant Jai Bhagwan, rather accused claims to have handed over the blank signed cheque to complainant as security which as per the assurance/oral schedule agreed between them was to be returned alongwith the blank promissory note, but was not returned and allegedly has been filled and misused by complainant Sh. Jai Bhagwan by filling in his own handwriting with different ink and filing the present false and frivilous complaint against him.
13. The plea of defence raised by accused Hem Chand at the time of framing of notice under section 251 CrPC has been reiterated by him at the stage of his examination without oath under section 313 Cr PC and has been stated/deposed by accused/DW1 Sh. Hem Chand and DW2 Sh. Naveen Chand Joshi during their examination in chief recorded in court on oath. The deposition of accused to the extent of complaint dated 21.09.2010 being made to PS Connaught Place regarding loss of cheque book and pass book, copy of complaint dated 21.09.2010 marked on record as Ex DW 1/A and his crossexamination on the point of loss of cheque book and pass book is not material for deciding the present case and no evidence is required to be led on record qua the plea of loss CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.10/29 of cheque book and pass book, being irrelevant and extraneous to the defence raised by accused in this case. Complainant Sh. Jai Bhagwan has filed his complaint under section 138 NI Act alleging that cheque no. 503915 dated 26.07.2011 for a sum of Rs. 1 lakh was issued by accused for repayment of the friendly loan of Rs. 1 lakh given to accused who was on visiting and friendly terms. Accused Hem Chand on the other hand claims that cheque no. 503915 was signed by him and handed over to complainant as blank cheque alongwith blank promissory note for securing loan of Rs. 10,000/ which money/loan he received from complainant in the presence of DW2 Sh. Navin Chand Joshi on 18.09.2010 and despite having returned the loan amount of Rs.10,000/ on 02.11.2010, in the presence of Sh. Navin Chand Joshi, complainant did not return the blank cheque and blank promissory note and misused the cheque by filling it in his own handwriting in different ink and filing the present false and frivilous complaint case. The complaint under section 138 of N. I. Act and plea of defence being specific in respect to cheque no. 503915, issue of loss of cheque book containing other cheque leaves is not material and relevant and no permission can be granted to complainant for leading evidence on the issue of loss of cheque book. Accordingly complainant's application for summoning Manager/ concerned official Punjab National Bank, Minto Road, New Delhi 110001 alongwith statement of account of accused from 01.07.2011 to 01.08.2011, Account No. 0129000100513040 and detail of cheque book from the cheque series no. 503901 to 503920 is dismissed. CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.11/29
14. As regards the criminal complaint filed under section 138 of N. I. Act, learned counsel for complainant has forcefully argued that accused has not disputed his signature upon cheque bearing no. 503915 hence presumption under section 139 of Negotiable Instrument Act, 1881 gets attracted which accused Sh. Hem Chand has failed to discharge as the defence raised by him that the cheque in question was given as security has not been proved on record and accused has admitted during his crossexamination that he has not obtained any written document (documentary evidence) against the handing over of signed blank cheque and promissory note given as security. Learned counsel for complainant has also referred to the cross examination of accused/ DW1 Hem Chand and DW2 Sh. Navin Chand Joshi wherein they have admitted that no written proof/receipt was issued by complainant at the time of repayment of Rs. 10,000/ by accused and so the plea of defence raised by accused has not been proved. Learned counsel for complainant submits that accused Sh. Hem Chand having issued the cheque, presumption under section 118 of the Negotiable Instruments Act gets attracted that the cheque bearing no. 503915 was issued for consideration and similarly legal presumption under section 139 of the Negotiable Instruments Act has to be raised against accused that the cheque was issued in discharge of debt or other liability. On the basis of his submissions Advocate Sh. Trilok Chand, learned counsel for complainant has strongly argued for convicting accused Hem Chand for the offence under section 138 NI Act stating that accused has failed to CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.12/29 discharge the legal presumption raised against him and is liable to be convicted for offence under section 138 N. I. Act.
15. Advocate Sh. Parikshit Mahipal, learned defence counsel per contra submits that accused Sh. Hem Chand has discharged the burden to rebut the legal presumption under section 139 of N. I. Act raised in favour of complainant having denied his liability for a sum of Rs. 1 lakh against complainant Jai Bhagwan in respect of cheque no. 503515 dated 26.07.2011 and has stated/deposed on record that cheque no. 503915 was signed and handed over to complainant Sh. Jai Bhagwan as blank security cheque alongwith blank promissory note for securing loan of Rs.10,000/ which was given by complainant to accused in the presence of DW2 Sh. Navin Chand Joshi on 18.09.2010 and has been returned by accused Hem Chand to complainant Jai Bhagwan in the presence of DW2 Navin Chand Joshi on 02.11.2010. Learned defence counsel has referred to the depositions of DWs and contends that despite his assurance/oral schedule agreed between them complainant failed to return the blank signed cheque and misused the cheque by filling the particulars in his own handwriting in different ink and filing the present false and frivilous case against accused. He accordingly prays for acquitting accused Sh. Hem Chand in this case.
LEGAL POSITION UPON THE ISSUE OF PRESUMPTION:
16. It has been held in a catena of judgments pronounced by Hon'ble CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.13/29 Supreme Court of India and Hon'ble Delhi High Court that accused is not deprived of his basic human right of presumption of innocence and the cardinal principle of criminal jurisprudence that the onus to prove its case through out trial lies upon prosecution/complainant and never shifts upon accused who is presumed to be innocent, unless proved guilty on record during trial, applies to cases under section 138 of N.I. Act.
Similarly it is no more res integra that the standard of proof to rebut the legal presumption by accused is not as onerous as that of complainant/prosecution and accused can rebut the legal presumption by making out probable defence and is not required to lead direct evidence to prove his defence as he has his constitutional right to remain silent and the standard of proof for accused/defendant is 'preponderance of probability'.
17. Chapter XIII of the Negotiable Instrument Act deals with Special Rules Of Evidence and Section 118 of N. I. Act lays down Presumption as to negotiable instruments as - Until the contrary is proved, the following presumption shall be made: (a) of consideration - that every negotiable instruemnt was made or drawn for consideartion, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiaited or transferred for consideration. Similarly section 139 of the N. I. Act lays down Presumption in favour of holder. It reads as It shall be presumed, unless CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.14/29 the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
18. Before adjudicating the present criminal complaint filed under section 138 of N.I. Act on the basis of facts and circumstances as mentioned in the complaint and deposed during trial, it would be prudent to discuss the case laws on the point of presumptions under sections 118 and 139 of N.I. Act regarding cheque having been issued for consideration, presumption in favour of holder, standard of proof on the part of accused to prove his defence and general onus upon the complainant to prove his case by leading direct evidence. CASE LAW/ JUDICIAL PRONOUNCEMENTS:
19. Hon'ble Supreme Court of India in case titled Krishna Janardhan Bhat Vs. Dattatraya G Hegde reported in 2008 II AD (SC) 421 has held "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 cheques that the same has been issued for discharge of any debt or other liability - The Courts below proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also The Courts committed a serious error in preceding on the basis that for proving the defence the accused is required to step into the CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.15/29 witness box and unless he does so he would not be discharging his burden Such an approach is not correct - 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 silenceStandard of proof on the part of an accused and that of the prosecution in a criminal case is different 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." Hon'ble Supreme Court of India referred to provision U/s 138 NI Act, presumptions in favour of complainant provided U/s 118 and 139 of Negotiable Instrument Act, besides having referred to its own judgments pronounced in case titled Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payre Lal (1999) 3 SCC 35, in para No. 24 of the judgment, and its other judgment pronounced in case titled Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16, in para No. 23 of the judgment for arriving at the conclusion.
20. In its later judgment titled Rangappa v. Sri Mohan pronounced in Criminal Appeal No. 1020 of 2010, the then Hon'ble Chief Justice of CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.16/29 India Sh. K. G Balakrishnan upheld the ratio of former ruling of the Apex Court in Krishna Janardhan Bhat Vs. Dattatraya G Hegde, though in para no 14 of the judgment he further observed that presumption mandated under section 139 of the Act does include existence of a legally enforceable debt or liability.
21. The ratio culled out from the judgments cited above, (Supra) pronounced by Hon'ble Supreme Court of India is that presumptions under sections 118 and 139 of Negotiable Instrument Act being rules of evidence do not conflict with the presumption of innocence of accused and prosecution is obliged to prove the case against accused beyond reasonable doubt. The obligation upon prosecution may be discharged with the help of presumptions of law or fact, unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. Hon'ble Supreme Court of India has observed that presumptions being rebuttable accused can prove non existence of presumption by raising probable defence showing that existence of consideration was improbable, doubtful or same was illegal. The burden upon accused/defendant of proving the nonexistence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. Hon'ble Supreme Court of India further observed that court may not insist upon the defendant to disprove the existence of consideration by CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.17/29 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. APPRECIATION OF EVIDENCE AND FINDINGS:
22. So far as the plea of defence raised by accused Hem Chand is concerned, he has through out the trial, i.e. at the stage of explaining the substance of accusation in the form of written notice framed under section 251 Cr PC, at the stage of his examination without oath under section 313 Cr PC and during his examination in chief as DW1 upon his application under section 315 Cr PC maintained to have taken loan of Rs.10,000/ from complainant Sh. Jai Bhagwan on 18.09.2010 which money/loan he claims to have returned to complainant in cash on 02.11.2010. Accused Hem Chand has examined himself as DW1 and the other defence witness Sh. Navin Chand Joshi as DW2 and both witnesses have deposed that the money/loan was taken by him from complainant on 18.09.2010 and same (Rs.10,000/) was returned in cash to complainant on 02.11.2010. Both defence witnesses have deposed that the blank signed cheque no. 503915 signed by accused and the blank promissory note signed by them were given to complainant and were not returned back to accused by complainant at the time of repayment of loan on 02.11.2010. DW2 Sh. Navin Chand Joshi has also deposed that accused Hem Chand had asked complainant Jai Bhagwan to return the blank cheque and promissory note which bore his signature and CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.18/29 complainant had assured that he would return the same to Hem Chand after 24 days but he has no knowledge whether they were returned by complainant to accused Hem Chand or not. Accused Sh. Hem Chand during his examinationinchief has similarly deposed to have handed over the blank signed cheque no. 503915 and blank signed promissory note bearing his signature and that of Mr. Navin Chand Joshi to complainant Sh. Jai Bhagwan for obtaining loan of Rs.10,000/ on 18.09.2010 and further deposed to have returned the loan amount of Rs. 10,000/ in cash to comlainant Jai Bhagwan on 02.11.2010 and asked him to return the blank signed cheque and blank signed promissory note, but complainant did not honour his assurance and refused to return the blank signed cheque and blank promissory note on one pretext or the other. DW1/accused Sh. Hemchand and DW2 Sh. Navin Chand Joshi have been crossexamined by learned Advocate Sh. Trilok Singh for complainant and admitted of having not obtained any written document against the handing over signed blank cheque and pronote given as security. Accused also admitted of having no written proof of payment of Rs. 10,000/ to complainant on 02.11.2010 as deposed in his examinationinchief, nonetheless claims to have made the payment to complainant in the presence of DW2 Sh. Navin Chand Joshi who is known to him for last 1213 years, having worked together at York Hotel, K Block, Connaught Place. The testimony of accused gets corroborated by deposition of DW2 who during his crossexamination by learned counsel for complainant has deposed that accused has CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.19/29 returned Rs. 10,000/ to complainant in cash consisting of currency notes of Rs.500/ denomination, but no receipt was issued by complainant Jai Bhagwan at the time of repayment of loan of Rs. 10,000/ besides having voluntarily stated that accused Hem Chand had asked for blank cheque and promissory note which complainant assured to return after 24 days.
23. Further accused Sh. Hem Chand in his examination recorded without oath under 313 Cr PC has alleged that complainant has misused the blank cheque given as security by filling the said cheque in his own handwriting with different ink and has filed the present false case against him. To prove his contention accused Hem Chand deposed during his deposition/examinationinchief that complainant has misused the cheque given to him as security having filled the same in his own handwriting with different ink. Though suggestion has been put to complainant Sh. Jai Bhagwan by learned defence counsel during his cross examination that cheque no. 503915 was signed and given to secure loan and all the columns in the cheque were filled by him but he has denied the suggestion.
24. Section 20 of the Negotiable Instruments Act 1881 deals with inchoate stamped instruments in cases in which the cheque bears the signature of the drawer and the other particulars are filled by the payee or holder. The provision is reproduced in verbatim as under:
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20.Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in for in [India], and either wholly blank or having written thereon an incomplee negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
25. Thus accused Sh. Hem Chand having signed the impugned cheque, presumption of cheque no. 503915 having been issued in discharge of debt or other liability has to be raised against him not withstanding his contention that other particulars, i.e. name of complainant/ payee, date of cheque, amount in figures and words was not filled by him, as having handed over the cheque either wholly blank or having written thereon an incomplete negotiable instrument, he prima facie had given authority to the holder/complainant to make or complete the same. However, in the present case at hand it is not the case of complainant that he had received incomplete/inchaote blank signed cheque from accused with authority to complete it, rather he claims to CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.21/29 have demanded payment from accused upon which accused issued cheque bearing no. 503915 dated 26.07.2011 for Rs. 1 lakh from his account with Punjab National Bank, Minto Road Branch, New Delhi, bearing A/c no. 0129000100513040. Cheque no. 503915 dated 26.07.2011 in the name of complainant Jai Bhagwan for a sum of Rs. 1 lakh mentioned in figures and words has been placed on record and referred during evidence as Ex CW1/A. Though complainant Jai Bhagwan has denied the suggestion put to him by defence counsel that cheque in question was given by accused as security cheque and all the columns were filled by him but it is apparently clear from the cheque placed on record marked Ex CW1/A that the cheque has been signed using blue colour ball pointed pen whereas the other particulars, i.e., date 26.07.2011, name of complainant as payee and amount Rs. 1 lakh in figures and words has been written in black colour and so the pen used for signing the cheque has not been used for filling the particulars. As such depositions of accused/DW1 Sh. Hem Chand and the other defence witness DW2 Sh. Navin Chand Joshi that cheque no. 503915 was handed over as blank cheque bearing signature of accused only and was given to complainant Jai Bhagwan alongwith blank promissory note for securing loan of Rs.10,000/ given to accused on 18.09.2010 and the signed blank cheque was not returned back to accused Hem Chand by complainant Jai Bhagwan despite repayment of money/loan on 02.11.2010 and has been misused by filling the particulars in different ink for filing the present complaint case becomes significant. CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.22/29
26. Besides the abovesaid finding it is again significant that complainant Sh. Jai Bhagwan has not mentioned the date, month and year of advancing the purported friendly loan of Rs. 1 lakh to accused in his complaint and in his affidavit marked Ex CW 1/1 though during his crossexamination by learned defence counsel he has voluntarily stated to have given the loan/money to accused on 06.05.2009. During his crossexamination by learned defence counsel complainant has referred to the photocopy of his bank statement placed on record and marked as Ex CW 1/X and claimed to have withdrawn the money from his PF account on 06.05.2009. The photocopy of statement of pass book shows that complainant has withdrawn Rs. 2 lakh from his account no. 4052000100020004 with Punjab National Bank through cheque no. 285755, but mere withdrawl of Rs. 2 lakh from complainant's account through cheque does not prove the alleged grant of friendly loan to accused Hem Chand as no receipt or other document recording the giving of loan has been stated or proved in evidence on judicial record by complainant. Though in his complaint and in his affidavit filed on record complainant Sh. Jai Bhagwan has stated that accused was on visiting and friendly terms, but, during his crossexamination by learned defence counsel he deposed to have known accused for last 1012 years as a colleague and as a friend and admitted that he has never visited the house of accused during the tenure of 1012 years. Further having voluntarily stated to have given loan to accused on 06.05.2009 during his CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.23/29 cross examination, complainant Jai Bhagwan has also claimed to have demanded back his money from accused six (6) months after 06.05.2009, but cheque bearing no. 503915 is dated 26.07.2011, i.e., more than two years and two months after the purported date of extending loan on 06.05.2009 and complainant has not cited the reason for delay occasioned by accused in issuing cheque to repay the purported loan more than 20 months after havinng demanded his money after six (6) months from 06.05.2009 as stated by complainant during his cross examination.
27. In the absence of any explanation/averment made in the complaint or in his affidavit marked as Ex CW1/1 as to what took it so long for accused Hem Chand to issue cheque against the friendly loan granted on 06.05.2009, cheque no. 503915 being dated 26.07.2011, coupled with the fact that the signature of accused upon the cheque is appended with in blue colour pen whereas the body/particulars upon the cheque has been filled in black colour, the defence raised by accused Sh. Hem Chand that cheque no. 503915 was given to complainant to secure loan of Rs.10,000/ received by him on 18.09.2010 which has been repaid to complainant on 02.11.2010 in the presence of Sh. Navin Chand Joshi seems probable as accused can prove non existence of legal presumption by raising probable defence showing that existence of consideration was improbable, doubtful or illegal which burden of proving the non existence of consideration can be discharged by reference to the CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.24/29 circumstances upon which he relies to raise preponderence of probability to rebut the legal presumption under section 139 of N.I. Act. Complainant Sh. Jai Bhagwan on the other hand has not led any documentary evidence on record as any promissory note, receipt etc. secured from accused at the time of granting friendly loan of Rs. 1 lakh in support of his contention. Accused Sh. Hem Chand having denied his liability against complainant Sh. Jai Bhagwan qua cheque no. 503915 for a sum of Rs. 1 lakh has examined himself and DW2 Sh. Navin Chand Joshi who is also known to the complainant having worked with the complainant at York Hotel till complainant Jai Bhagwan was suspended in July 2005 from York Hotel and both defence witnesses have denied liability of accused qua cheque no. 503915 having deposed that the cheque was only signed and given to complainant on 18.09.2010 to secure loan of Rs. 10,000/ which money has been returned/refunded to complainant on 02.11.2010.
28. Hon'ble Supreme Court of India in the judgments discussed above (supra) has observed that accused can prove non existence of presumption by raising probable defence showing that existence of consideration was improbable, doubtful or same was illegal and further observed that burden upon accused/defendant of proving the non existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies and court may not insist upon the defendant to CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.25/29 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. Accused Sh. Hem Chand cannot be expected to lead any positive evidence to prove his defence that he has not availed the alleged loan of Rs. 1 Lakh and court can not insist upon him to disprove the nonexistence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated.
29. In the present case in hand, having examined himself and his witness Sh. Navin Chand Joshi on judicial record as DW1 and DW2 and both defence witnesses having withstood the test of cross examination as regards purported loan of Rs.10,000/ given by complainant to accused against the blank signed cheque bearing no. 503915 and the blank promissory note on 18.09.2010 which accused claims to have returned/refunded to complainant in the presence of DW2 Sh. Navin Chand Joshi, the legal presumption under sections 118 and 139 of N. I. Act has been discharged by accused and complainant is required to prove his allegation of having advanced friendly loan of Rs. 1 lakh and accused having issued cheque no. 503195 to dicharge his liability for repayment of loan which he has failed to prove on judicial record. Complainant Sh. Jai Bhagwan has admitted during his cross examination that he has not mentioned the date, month or year of demanding the amount in his affidavit and nonmentioning of date, CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.26/29 month and year of extending loan, notwithstanding the denial made by him coupled with his conduct of having not disclosed the reason for delay in issuance of cheque by accused to discharge liabilty against the alleged friendly loan advanced on 06.05.2009 and silence about the change of pen used for signing and filling the body (particulars) of the cheque, I am of the considered opinion that in the absence of any documentary evidence in the nature of receipt, promisssory note, etc, secured by him from accused at the time of advancing of the alleged loan, complainant Sh. Jai Bhagwan has failed to prove his contention to have advanced the friendly loan of Rs. 1 lakh to accused Sh. Hem Chand.
30. It is also pertinent to be mention that as per provisions under section 269SS of Income Tax Act, 1961, all transactions involving Rs. 20,000/ and above should be through 'account payee cheques', as held by the Hon'ble Karnataka High Court in case titled as B. Girish Vs. S. Ramaiah 2011(4) Civil Court Cases 338 (Karnataka). In another judgment titled Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & another 2009(3) Civil Court Cases 563 (Bombay), Hon'ble Bombay High Court has held in similar case of dishonour of cheque where cash loan not disclosed in Income Tax Return Liability to repay unaccounted cash amount is not a legally enforceable liability Debt is not legally recoverable debt (Para 13 and 15) .
CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.27/29
31. Accused Hem Chand having explained the circumstances under which cheque no. 503915 bearing his signature was given to complainant Sh. Jai Bhagwan to secure loan of Rs. 10,000/ availed by accued on 18.09.2010 and he himself and DW2 Sh. Navin Chand Joshi having deposed that the loan amount of Rs.10,000/ has been returned to complainant Sh. Jai Bhagwan on 02.11.2010 who nonetheless failed to return the blank signed cheque which has been filled and misused by complainant Sh. Jai Bhagwan for filing the present false complaint case under section 138 of N. I. Act, accused has discharged the burden of showing existence of preponderance of probability of the defence raised by him and complainant Jai Bhagwan has failed to prove on record the liability of accused Hem Chand qua cheque no. 503915 having failed to explain the difference in the ink used for sigining and filling the particulars of the cheque as well as the reason of delay in issuing cheque as the purported friendly loan was allegedly given on 06.05.2009 as deposed by him during his crossexamination and cheque bearing no. 503915 marked as Ex CW 1/A is dated 26.07.2011.
32. Hence on the basis of the above said discussions, I am of the considered opinion that complainant Sh. Jai Bhagwan has failed to prove the legal liability of accused Sh. Hem Chand on record against impugned cheque no. 503915 so as to convict accused of the offence u/s 138 N. I. Act. Accused having discharged the burden by explaining the CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.28/29 circumstances under which the cheque was given as security, burden to prove his case by proving legal liability/legal debt of accused qua impugned cheque has shifted upon complainant which complainant Sh. Jai Bhagwan has failed to discharge. Defence of accused being probable, complainant has failed to prove that impugned cheque had been issued by accused in discharge of legal debt against alleged friendly loan. Accused Sh. Hem Chand is accordingly acquitted of offence under section 138 of N. I. Act for failure of complainant Sh. Jai Bhagwan to prove his case against accused beyond reasonable doubt. Bail bond of accused stands cancelled. His surety stands discharged. Accused is directed to furnish personal bond for a sum of Rs.5000/ with his undertaking to appear before learned Appellate Court/ Hon'ble High Court of Delhi in case complainant prefers to file his appeal against order/ judgment of acquittal. Personal bond has been furnished by accused in compliance of Section 437 A Cr PC and same is accepted. Original document, if any, be returned back to rightful claimant against receiving and case file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 07/06/2013 (TARUN YOGESH) ACJARCCCJ :
PATIALA HOUSE COURTS NEW DELHI : 07/06/2013 CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.29/29 CC No. 19/1/12 Jai Bhagwan Vs. Hem Chand Page no.30/29