Vikas Chander vs Rajesh Kaushik on 10 November, 2017

[Cites 12, Cited by 1]

Punjab-Haryana High Court

Vikas Chander vs Rajesh Kaushik on 10 November, 2017

Registry is directed to number the same as criminal appeal. Challenge in the present appeal is to the judgment dated 28.02.2013 passed by the trial Court vide which the respondent/accused namely Rajesh Kaushik was acquitted of the charges framed against him under Section 138 of the Negotiable Instruments Act (in short 'the Act') in criminal complaint No.1470-II of 2010.

Brief facts of the case are that the appellant has filed a complaint under the Act with the allegation that the respondent had obtained a loan of Rs.2,50,000/- from the complainant and had issued a cheque bearing No.501718 dated 16.08.2009 drawn on Union Bank of India, Hisar. The complainant/appellant has presented the cheque with his bank and the same was returned on 22.01.2010 with the remarks 1 of 10 ::: Downloaded on - 14-11-2017 01:58:12 ::: CRM-A No.203-MA of 2013 (O&M) 2 insufficient funds. Later on, the appellant had issued a legal notice dated 30.01.2010 and after affording 15 days time, when the accused failed to reply, the present complaint was filed.

The respondent/accused - Rajesh Kaushik was summoned. Thereafter, in view of the judgment of the Hon'ble Supreme Court in "Nitinbhai Sevatilal Shah and another vs Manubhai Manjibhai Panchal", 2011(4) RCR (Criminal) 148, a de novo trial was conducted and notice of accusation was served upon the respondent afresh on 21.01.2012 to which he did not plead guilty and claim trial.

The complainant/appellant appeared himself as PW1 and tendered his affidavit dated 15.03.2012 as Ex.PW1/A reiterating the facts of the case. The complainant also tendered the original cheque as Ex.P1, bank return memorandum dated 22.01.2010 as Ex.P2, legal notice dated 27.01.2010 as Ex.P3, postal receipts dated 30.01.2010 as Ex.P4, cover-note as Ex.P5 and income-tax returns as Exs.P6 and P7.

The respondent/accused in his statement under Section 313 Cr.P.C. denied the incriminating evidence which has come on record and also denied that he has obtained a loan of Rs.2,50,000/-. It was also denied that he has issued a cheque of Rs.2,50,000/- to the complainant to discharge the outstanding liability.

The trial Court vide its impugned judgment dated 28.02.2013 acquitted the respondent/accused. The operative part of the judgment is reproduced as under:-

"16. After shifting the evidence, it is observed that the complainant/holder of the cheque Sh. Vikas (CW1) failed to place on record any document in proof of alleged advance of loan of sum of Rs.2,50,000/- (Rs. Two Lacs and 2 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 3 Fifty Thousand only) to the accused Sh. Rajesh. He also omitted to furnish his Account-Books and the Income Tax Returns of the relevant year despite avaiability, to prove his complaint by establishing his financial capacity and monetary transactions, etc. from time to time. His complaint, as well as his affidavit were silent about the date, months or year of the alleged advance of loan to the accused - Sh. Rajesh (Drawer of the cheque). Whereas, it is a settled law in Krishna Janardhan Bhat vs Dattatraya G. Hegde 2008(1) RCR (Criminal) 698(SC) that it was the boundn duty of the complainant to prove that he had that much money to advance.

17. It has also been settled by the Hon'ble Supreme Court of India in the aforesaid petition that ordinarily, in terms of Section 269 SS of the Indian Tax Act, 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.

18. It has also been held in M/s Fanesh Flour Mills vs Jeewan Kumar and another 2004(2) RCR (Criminal) 797 (P&H) that it was incumbent upon the complainant to produce documentary or oral evidence to establish that the cheque was in fact issued to him to discharge a debt or liability-Accused denying liability- Complainant failed to show in which connection accused issued the cheque i.e. whether the cheque was against the supply of goods, loan, etc. Accused rightly acquitted.

19. In the present case also, not even an iota of evidence has been adduced by the complainant/holder to prove either his financial capacity or the alleged fact of advance of loan of such a huge amount to the Drawer- Accused. He even failed to furnish the account-books to prove his bona fide. Therefore, relying upon the settle law in M.s. Narayanan Menon vs State of Kerala 2006(3) RCR 3 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 4 (Criminal) 49 (SC), wherein it has been held that Court shall presume that a negotiable instrument has been issued for consideration unless and until after considering the matter before it, either believes that the consideration does not exist or consideration was not passed;

The cheque in question in the present case is deemed to have been presented in the Bank, by the complainant/holder Sh. Vikas without any existing liability.

20. Similar, was the view taken by Hon'ble Supreme Court in C. Antony vs K.G. Raghavan Nair 2002(4) RCR(Crl) 750 (SC) that Blank cheques- Dishonour-Loan Denied-Bank Cheque in connection with a chit Transaction-Complainant did not produce the witness in whose presence it was alleged that payment was made to the accused-Accused acquitted.

21. As far as, the sanctity of the Income Tax Returns (Ex.C6 and Ex.C7) of the complainant was conerned, had been admittedly adduced in evidence after closing his oral evidence, thus, without giving an opportunity to the accused/learned counsel, to cross- examine him on vital points. Hence, as mere marking of document, an exhibit does not dispense the party of its proof, the Returns (Ex.C6 & Ex.C7) are hereby held inadmissible in evidence for want of proof.

22. On the basis of the above discussion, it is, thus, held that there was presumption of innocence attached to the accused in a criminal case and he had a right to remain silent. However, he could prove his innocence by shifting the evidence, already on record. Therefore, after analyzing the entire evidence both oral and documentary, it is observed that the complainant failed to prove the alleged fact of advancce of loan. However, loan, if at all advanced should have been vide an Account Payee Cheque. Hence, the complainant/holder 4 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 5 failed to prove his complaint beyond reasonable doubt. In consequence thereof, the complaint stands dismissed and the accused/Drawer Sh. Rajesh is hereby acquitted of the notice of accusation served upon him under the Act. His bail bonds and surety bonds also stand discharged. File be consigned to the Record Room, after due compliance."

Counsel for the appellant has filed the present appeal challenging the said judgment along with an application seeking permission for leave to appeal under Section 378(2) Cr.P.C. Counsel for the appellant has raised the following arguments:-

(a) The trial Court has wrongly noticed that the income-

tax returns (Exs.P6 and P7) have been tendered later on and the accused had no occasion to cross-examine the complainant on this aspect, is factually incorrect.

Counsel for the appellant has referred to the lower court records where in examination-in-chief by way of affidavit dated 15.03.2012 of the appellant, in para 4, it is mentioned that the income-tax returns are Exs.P6 and P7. Counsel for the appellant has further submitted that on the same date, the statement of the appellant was recorded and in examination-in-chief, the appellant has stated that he tenders his affidavit Ex.PW1/A and documents Exs.P1 to P7 which may be read in his evidence. The documents were, however, objected to by the respondent/accused and, therefore, these were submitted on 15.03.2012 itself.

(b) Counsel for the appellant has further submitted that, in fact, during cross-examination of the complainant as PW1, in replyy to a specific question, he stated that he has brought the 5 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 6 income-tax returns for the last 02 years, whereas the original is with the Chartered Accountant. Counsel for the appellant in this regard has further submitted that in the statement of the respondent/accused - Rajesh Kaushik recorded under Section 313 Cr.P.C., these income-tax returns Exs.P6 and P7 were specifically put to him and in reply, he submitted that these documents are fake and not produced, in accordance with law.

(c) Counsel for the appellant has further argued that, in fact, in this case the statements were recorded on two occasions and before the de novo trial, these income-tax returns were also submitted separately on an earlier occasion and the trial Court has relied upon that statement erroneously whereas the affidavit dated 15.03.2012, the statement of the appellant for recording his examination-in-chief in which these 02 income-tax returns were tendered as Exs.P6 and P7 are of the same date i.e. 15.03.2012.

(d) Counsel for the appellant with reference to these 02 documents Exs.P6 and P7 has submitted that in the income-tax returns pertaining to the Financial Year 2009-10 and Assessment Year 2010-11 (Ex.P6) as well as the Financial Year 2010-11 and Assessment year 2011-12 (Ex.P7), the advancement of loan of Rs.2,50,000/- to the respondent/accused - Rajesh Kaushik has been duly shown and as such, it is argued that the trial Court had no occasion to disbelieve the income-tax returns on a wrong notion that the same have been submitted later on.

(e) Counsel for the appellant has further submitted that 6 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 7 the accused has not filed any reply to the legal notice and has not denied his liability or has not disputed the issuance of a cheque and, therefore, the same stood admitted by the respondent and there is no explanation in what circumstance, the same was issued. Counsel for the appellant has relied upon the judgment "T. Vasanthakumar vs Vijayakumari", 2015(2) RCR (Criminal) 894 where the Hon'ble Supreme Court in paras 9 and 10 has held as under:-

"9. This Court has held in its three judge bench judgment in Rangappa v. Sri Mohan 2010(3) R.C.R.(Criminal) 164 : 2010(3) R.C.R.(Civil) 197 : 2010(3) Recent Apex Judgments (R.A.J.) 415 : (2010) 11 SCC 441:

"The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant."

10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may 7 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 8 be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. It is, thus, submitted that once the accused has admitted his signatures on the cheque, the presumption under Section 139 of the Act would operate in favour of the complainant.

In reply, counsel for the respondent has submitted that the trial Court has recorded a well-reasoned finding that:-

i) No date, month or year has been given in the complaint or in the affidavit Ex.PW1/A as to when the loan was advanced.

ii) The income-tax returns have not been produced in accordance with the provisions of the Indian Evidence Act and, thus, are inadmissible for want of proof.

iii) The complainant has failed to prove that the cheque in question was presented in discharge of legally enforceable law against the accused.

iv) The complainant has failed to prove any accounts books or other documents to prove that an amount of Rs.2,50,000/- was paid and it has also not been proved that the complainant has the financial capability to advance the amount of Rs.2,50,000/-.

After hearing the counsel for the parties, I find force in the present appeal. The only reason which has been assigned by the trial Court in discarding the income-tax returns (Exs.P6 and P7) is that the evidence has been adduced by the complainant after closing the oral evidence, is factually incorrect. In fact on 15.03.2012, the affidavit of 8 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 9 the complainant along with these documents was furnished and his examination-in-chief for exhibiting this affidavit was recorded on the same day and his cross-examination was also conducted on the same day and, thus, the finding of the trial Court in this respect is factually incorrect.

The trial Court has further recorded an erroneous finding that the income-tax returns (Exs.P6 and P7) are inadmissible in evidence. Since, these documents pertain to the complainant himself and have come from the custody of the complainant showing the relevant entry of advancement of loan by mentioning the name of the accused person - Rajesh Kaushik, the complainant while exhibiting these documents in his affidavit has proved the same, in accordance with law. Since, the accused - Rajesh Kaushik has cross-examined the complainant with regard to the income-tax returns, though, the same were photocopies, the finding by the trial Court that the accused has no occasion to cross-examine him is also factually incorrect. The trial Court in this regard has totally ignored the statement of the accused under Section 313 Cr.P.C. where these income-tax returns were put to him and he has simply stated that these are fake documents.

Even otherwise, these income-tax returns (Exs.P6 and P7) were submitted before the trial Court even on an earlier occasion i.e. 30.09.2011 and were part of the record when de novo trial was started, the accused has sufficient opportunity to rebut the same but no defence evidence was led. Though, in the complaint and the affidavit, the complainant has failed to give specific date about advancement of loan, it cannot be a sole ground to dismiss the complaint when the accused 9 of 10 ::: Downloaded on - 14-11-2017 01:58:13 ::: CRM-A No.203-MA of 2013 (O&M) 10 has admitted issuance of cheque and his signatures on the same. Since, it is a settled principle of law as held by the Hon'ble Supreme Court in T. Vasanthakumar's case (supra) that once the issuance of a cheque as well as the signatures on the same are accepted by the accused, the presumption under Section 139 of the Act would operate.

As the respondent/accused has failed to discharge the presumption by leading any evidence, the trial Court has wrongly acquitted the respondent of the notice of accusation served on him. Accordingly, the present appeal is allowed and the matter is remanded back to the trial Court for decision afresh after affording proper opportunity of hearing/evidence to the parties, in accordance with law.




10.11.2017                                (ARVIND SINGH SANGWAN)
yakub                                              JUDGE


             Whether speaking/reasoned               Yes/No

             Whether reportable                      Yes/No




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