Delhi District Court
Karampal Singh vs Yogesh Singh on 23 April, 2024
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE, NI ACT DIGITAL COURT, NORTH EAST
DISTRICT, KARKARDOMA COURT, DELHI
JUDGMENT
KARAMPAL SINGH VS YOGESH SINGH CC NO: 825/2021 P. S. Khajoori Khas U/s 138 NI Act CNR No. of the case : DLNE020052252021 Date of institution of the case : 20.12.2021 Cheque number and dated : 070346 dt. 18.10.2021 025927 dt. 11.10.2021 Cheque amount : Rs.5,00,000/-each Name of the complainant : Karam Pal Singh s/o Late Sh. Hari Singh r/o H.No. 22, gali no.1, Village Sherpur Delhi-110094 Name of the accused and his : Yogesh Singh (Prop. of Yogesh construction) parentage S/o Sh. Rajvir Singh R/o C-319/1, gali no.14, Bhajan Pura, Delhi-110053 Offence complained of : 138 NI Act Plea of accused : Not guilty Orders reserved on : 16.03.2024 Final order : Accused Yogesh Singh is acquitted for offences punishable under sections 138 NI Act.
Date of judgment : 23.04.2024
1. Vide this judgment the present complaint case for an offence punishable U/S.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 1 of 20 Digitally signedSNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:20:55 +0530
2. It is case of the complainant that the complainant and the accused are well known to each other and are having friendly reations being the resident of almost same vicinity from last several years. The accused claimed himself as the absolute owner of the shop bearing no. C-319/1, Khasra no.374, Gali no.14, Bhajan Pura, Delhi-110053 and during last quarter of year 2020, in the month of October 2020, approached the complainant and expressed that he is in dire need of money due to certain financial crises occurred during lock down of March 2020 and assured the complainant that he would return the helped amount within a period of a year in any circumstances. Considering the request of the accused, complainant extended a loan of Rs.10 lacs on 1 % interest in the last week of October 2021 with a assurance of returning the same within one year from the date of borrow. In this regard, a mortgage agreement was executed between the complainant and the accused on 09.11.2020 in which he agreed to mortgage his property of which he claimed himself to be the absolute owner vide shop bearing no. C-319/1, Khasra No. 374, gali no.14, Bhajan Pura, Delhi and agreed to pay the entire loan amount maximum till 08.10.2021 in any circumstances. Accused stopped paying interest since March 2021. On the due date as per the agreement dt. 09.11.2020, complainant approached the accused and demanded his money back to which the accused showed his inability and requested some additional days extention. Accused requested and assured the complainant that he will repay the amount by 18.10.2021 but refused to pay the interest amount. The complainant considered his request but asked the accused to issue post dated instrument for the due amount in his favour and assured the accused as soon as the entire amount of Rs.10 lacs is paid by the accused, the complainant would return the original mortgage agreement dt.09.11.2020 back to the accused.
CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 2 of 20 Digitally signed by SNEHILSNEHIL SHARMA SHARMA Date:
2024.04.23 17:21:09 +0530
3. The accused in discharge of his legal liability has issued two post dated cheques bearing no. 025927 dt. 11.10.2021 drawn on Allahabad Bank, Bhajan Pura, Delhi -110053 and another cheque bearing no. 070346 dt. 18.10.2021 drawn on OBC Bank, Yamuna Vihar, Delhi-53 amounting to Rs. 5 lacs each in favour of the complainant with the assurance that the loan will be returned by 18.10.2021 and complainant should wait and present these cheques once there is go ahead by the accused but complainant did not agree.
4. The complainant presented both the abovesaid cheques for encashment with his bank but the said cheques were dishonoured and returned unpaid with remarks "Old cheques not acceptable" vide return memo dated 14.10.2021 & 21.10.2021. On asking to replace the said cheques with new one, accused has refused to do so. On inquiry from the concerned bank, the bank informed that the accused does not have sufficient balance in his bank account.
5. The complainant had sent a legal notice dated 28.10.2021 to the accused through his counsel regarding the dishonour of the aforesaid cheques through registered AD & speed post and the same was served upon the accused. The accused has neither replied nor make payment of the cheque amount and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
6. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dated 20.12.2021.CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 3 of 20 Digitally signed
SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:16 +0530
7. Accordingly, on 22.02.2022 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, accused has admitted his signatures on both cheques, however denied the other details such as name, amount and date being written by him. These cheques were lost somewhere regarding which he had made complaint also. He has admitted his address to be correct but denied having received legal demand notice. He has stated that he know the complainant. He is a property dealer. He had not taken any loan from the complainant. He does not owe any liability of cheques amount towards the complainant. Cheques in question are his lost cheques regarding which he had made online complaint/NCR bering LR NO. 1772472/2019 dt. 21.10.2019. Complainant made him to sign on blank papers on the pretext of helping him in getting the loan and also take the copy of his aadhar card which also bears his signature.
8. In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence and relied upon the following documents:
i) Ex. CW1/X : Evidence of complainant by
way of affidavit.
ii) Ex. CW1/1 : Adhar card of
complainant
iii) Ex.CW1/2(colly): Original mortgage deed alongwith attested copy of adhar card of the accused (admitted U/s. 294 Cr.P.C.)
iv) Ex. CW1/3 &4 : Cheque dt. 11.10.21 & return memo (admitted U/s. 294 Cr.P.C.)
iv) Ex. CW1/5&6 : Cheque dt. 18.10.21 & CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 4 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:24 +0530 return memo (admitted U/s. 294 Cr.P.C.)
v) Ex. CW1/7 : Legal notice (admitted U/s. 294 Cr.P.C.)
vi) Ex. CW1/8 : Postal receipts
vii) Ex. CW1/A : complaint
9. CW1/complainant was cross examined on behalf of the accused. During cross examination, CW1 has deposed that he know the accused for around 40 years. Accused is in the business of property dealing. The distance between his house and the house of accused is around 700 Mtrs. Earlier he was in government service and he got retired in December, 2020. He does not remember the amount of his last ITR since he was in government service and he used to get form 16. He has only one house where he is residing. He paid the amount to the accused in the last week of October, 2020. He paid the amount to the accused in cash. He paid an amount of Rs. 10,00,000/- to the accused. He had no knowledge if cash transaction of more than Rs. 20,000/- cannot be done. The amount which he had given to the accused was from his personal savings which he saved from his service. He does not have any certificate of interest. The shop in question is in the name of accused as per his knowledge. He had seen the documents of the shop which were in the name of the accused. The accused had given him the photocopy of the title document of shop in question. The agreement was made on 09.11.2020 between him and the accused. It was executed at Seelampur, Registrar Office. There were four persons at the time of execution of agreement namely Sh. Maan Singh, Sh. Sateesh, he and the accused. The agreement was prepared and executed by his consent and the accused. He had admitted that he had given Rs. 50/- as stamped duty for the execution of Agreement Ex. CW1/2 (colly).He had admitted that the said document does not bear the photograph of any of the party. He has also admitted that the area and measurement of the shop is CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 5 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:30 +0530 also not mentioned in the said agreement. He has also admitted that no cheque is mentioned in the said agreement Ex. CW1/2. He has also admitted that the said agreement Ex. CW1/2 is not registered. He does not know if it is mandatory to pay the stamp on any document having transaction of more than Rs. 20,000/-. No interest was paid by accused to him. The cheques in question were given by accused to him on 10.10.2021. Accused had given the cheques in question duly filled. However, he cannot comment upon the NCR by accused with respect to the cheques in question on 21.10.2019 Mark CW1/D1.
10. CW2 is Satish Kumar. He has tendered his evidence by way of affidavit Ex.CW2/A. He has relied upon the Original mortgage deed alongwith attested copy of adhar card of the accused document already Ex. CW1/2 (colly).
11. CW2 was cross examined on behalf of the accused. During cross examination, CW2 has deposed that he is 58 years old. He know complainant as he is residing in the same area at the distance of around 200 mtrs. from his house. He know the complainant for the last 20 years. He runs a general store. He has admitted that the transaction in question did not take place in his presence, however, the agreement in question Ex. CW1/2 was executed in his presence. He has admitted that the agreement Ex. CW1/2 does not bear his thumb impression. He has voluntarily stated that he had signed the same. He had signed the agreement Ex.CW1/2 after going through the same. He know the contents of agreement Ex.CW1/2. The agreement contained the fact about some shop and the amount of Rs. 10,00,000/-. The agreement was executed at around 12 noon. He does not remember if he signed any other document also apart from the agreement Ex. CW1/2. He signed the agreement as a witness. He has admitted that CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 6 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:37 +0530 the agreement Ex. CW1/2 does not bear any photograph. He has admitted that agreement Ex. CW1/2 is not attested by any authority. No cheque was given in his presence.
12. CW3 is Maan Singh. He has tendered his evidence by way of affidavit Ex. CW3/P and relies upon the Original mortgage deed alongwith attested copy of adhar card of the accused already Ex. CW1/2(colly). His aadhar Card is Ex. CW 3/1.
13. CW3 is cross examined on behalf of the accused. During cross examination, CW3 has deposed that he know Karam Pal as he is his neighbour. He worked as a government servant. He is retired as of now. He know Yogesh. His shop is in Bhajan Pura market and Yogesh resides near his shop. His affidavit was prepared 1-2 days back in the court. He know the contents of his affidavit. He is 8 standard pass. He does not know English. He know Hindi Language very well. There was an agreement between the accused and complainant on 09.11.2020. There were four people present at the time of execution of agreement i.e. He, Karampal, Yogesh and Satish. The transaction happened in front of him between accused and complainant. He has admitted that the transaction took place between accused and complainant in front of him.The amount was of Rs. 10,00,000/-. The amount was given in a big bag toYogesh.The amount was given in packet of Rs. 50,000/in the denomination of Rs.500/-. He is in a business of restaurant. He and his son used to operate the same. The working hours of restaurant is from 10:00 am to 9:00 pm. He signed as a witness on the agreement dated 09.11.2020. He has admitted that agreement dated 09.11.2020 is not stamped. He has admitted that no cheques were handed over in front of him to the complainant. He had CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 7 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2024.04.23 17:21:43 +0530 denied all the suggestions put to him during cross examination. Thereafter, CE was closed.
14. The accused was then examined under Section 313 Cr.P.C., 1973 wherein all the incriminating evidence were put to the accused and accused has stated that he know the complainant. He is a property dealer. He had denied having taken loan from the complainant. He had denied the execution of document Ex. CW1/2 between him and the complainant and stated that it is false and fabricated. He further deposed that he does not owe any liability towards the complainant qua cheques in question. Cheques in question are his lost cheques regarding which he had made online complaint/NCR bearing no. LR NO.1772472/19 dated 21.10.2019. He had denied having received the legal notice. Accused has further deposed that all the documents are false and fabricated. The complainant made him to sign on blank papers on the pretext of helping him in getting the loan and also take the copy of his adhar card which also bears his signatures. Accused has opted to lead DE and examined himself as DW1.
15. DW1 has deposed that the cheque in question belongs to him and it was blank signed when he was going to pay his electricity bill on 21.10.2019 at around 10:00am. He had one more blank signed cheuqe with him on that day, however, he does not remember the cheque number. He had mobile signal tower installed at the home and he was going to pay the electricity bill for the same. He did not know the exact amount, therefore, he had taken blank signed chequs with him including the cheque in question and both the cheques were drawn on two different banks. He got registered the NCR online on the same day at about 01:00pm and the same is Mark CW-1/D1. He know the complainant since long. He is in the property dealing business and he had obtained the photocopy of his aadhar CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 8 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:51 +0530 card self attested on the pretext of providing him loan. He does not owe any liability towards the complainant.
16. DW1 was cross examined on behalf of the complainant. During cross examination, DW1 has deposed that he has two saving bank accounts which he is maintaining for last seven-eight years. He has got updated his current address and latest mobile number in both the accounts. He received the SMS of transaction in his bank accounts. He did not receive any message whether any cheque in question was dishonoured. He came to know about the dishonourment of cheque after filing the case. After knowing the case he talked to his counsel. He did not take any action as accused had already taken the action by registering the NCR in 2019. Accused did not approach the police regarding the fact of cheque in question being presented by the complainant. He got registered the NCR so that no one can misuse his lost cheques. He has instructed in bank also for stopped payment. He has not produced any document with respect to instruction made by him to the bank. DW1 paid his electricity bill after 2-3 days of NCR. He has not filed the copy of electricity bill which was supposed to be paid on 21.10.2019. Complainant obtained copy of his adhar card in 2021. He did not demand his self attested adhar copy from the complainant. He had visited his office 2-3 times but complainant did not meet him. The address mentioned on adhar card is correct. DW1 had received the legal notice and shown the same to his counsel.
17. DW1 has further deposed that he is a civil contractor in MCD. His mobile number is 9211528050. He gave the copy of his adhar card to complainant in the year 2021, but he does not remmeber the month. He has voluntarily stated that he had signed on two blank papers also and gave to complainant. He did not make any police complant or protest when CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 9 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:21:56 +0530 complainant did not return said documents. He has voluntarily stated that he had demanded but he did not return. He needed the loan as his payment from MCD was late. He did not take loan from anywhere else. He has voluntarily stated that he had taken help from his family and friends. He again stated that he is the owner of house and the shop is in share of his brother. He had given the papers of his property bearing no. C-319/1, gali no.14, Bhajan Pura, Delhi -53. His house is in two parts and two sides so he had given the photocopies of papers of his property in gali no.15. He had demanded his property papers back from complainant but he did not return the same to him. He did not take any action against the complainant when he did not return his property papers. There are no other cheque bouncing cases again him. The office of the complainant is situated at main road, Bhajanpura where the car sale purchase business is operated and where he had gone to demand his aadhar card and documents back. DW1 had denied all the suggestions put to him during cross examination.
18. It has been argued by Ld. Counsel for the complainant that case of the complainant is proved and cheque is also in the favour of the complainant, therefore, accused must be convicted and amount should be recovered. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in this case and that complainant has not been able to prove its case beyond reasonable doubt against the accused.
19. I have heard ld counsel for the complainant and Ld. Defence counsel for accused & considered the respective arguments as well as gone through case file very carefully.
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20. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
21. Before discussing the facts, undersigned deems it necessary to discuss certain legal propositions i.e. it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the case is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
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22. In this case, perusal of record shows that the reason for dishonour of cheque is old cheque and not the funds insufficient etc. Therefore, the main issue which has arisen for consideration before this Court is whether a cheque which is dishonored for the reason 'old cheque' is a valid instrument and is sufficient to attract the provisions under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as 'the NI Act'). Ld. Counsel for the complainant has argued that the accused has deliberately issued old cheques to the complainant knowing that it shall not be honored upon presentation and hence the accused should not be allowed to take benefit of his own wrong.
23. As per the undersigned, the provision as contained in section 138 of the NI Act makes it clear that it is not every return of a cheque return unpaid which leads to prosecution of an offence under the said provision of law. For such purposes, the cheque must have been returned 'unpaid' either because the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. In the instant case, the impugned cheques have been returned dishonored on the ground that it is an 'old cheques'. Perusal of record shows that the complainant has nowhere called the bank witness to prove that not only the cheques were returned being old but also on the date of the cheque the accused was not having sufficient balance in his account or cheque got dishonoured due to the other reasons like "exceed the arrangement" or "signature differ" or "account closed" etc.
24. It is very much clear from the provisions of NI Act that the cheque must be dishonored for the reasons, the fault of which can be attributed to CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 12 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2024.04.23 17:22:16 +0530 the accused and not for any other reason or change in law or rules and regulations of the RBI. Support is drawn from the decision of Hon'ble High Court of Delhi in a case titled as M/s. Ceasefire Industries Ltd. Vs. State & Ors CRL.L.P. 51/2017 decided on 1st May, 2017. As per the RBI, the cheques in question were seized to be legal tender and that is why the concerned bank returned the same with the remark of "old cheque". From the facts of the case and the documents on record, it is clear that the dishonor of impugned cheques in the present case is beyond the control of the accused and accordingly it would be unjust and unfair and against the very intent and purpose of the legislature to compel the accused to face trial.
25. Further, the contention that the accused deliberately issued the impugned cheques knowing that the same shall not be honored upon presentation also does not hold water in the eyes of law. Because offence under Section 138 of the NI Act is a technical offence and if the cheques itself are not a valid instrument and the reason for dishonor is not covered under the said section, then without prejudice to the other remedies that the complainant may have against the accused under the Indian Penal Code or Civil or Recovery or other laws for the time being in force, no offence of dishonor of the cheques can be made out against the drawer under the NI Act. This old cheque being seized legal tender is not less than demonitisation of the old cheque and therefore does not have any value after the expiry of seizing date. In this case, a cheque which has been returned due to being old cheque is nothing less than a printed paper which does not have any value for the bank and has been declared invalid by RBI being old cheque. Therefore, it cannot be said that essential ingredients
(iii) stand proved by the complainant.
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26. In this regard, it is important to draw attention on the judgment of Md. Nasim Ansari Vs. State of Jharkhand Crl. Revsion No. 685 of 2012, wherein the Hon'ble High Court of Jharkhand has dealt with the question whether bouncing of cheques on the ground that the same were not acceptable to the bank on account of its being non MICR called for prosecution u/s 138 of N.I.Act and has observed as under:
"15.The learned trial Court convicted the petitioner under Section 138 of the Negotiable Instruments Act and has totally ignored the reason for second bouncing of cheques pursuant to Bank memo cover letter dated 10.07.2007 which was marked as exhibit5 i.e on account of its being nonMICR and not acceptable to the bank, which indicated that the cheques had bounced not because of insufficiency of funds but because of the fact that the cheques themselves had lost their validity/acceptability by the bank"
"17. Admittedly the second bouncing of cheques was not on account of any insufficiency of fund in the bank, nor the same was on account of any act of stop payment etc. from the side of the petitioner. Thus, by the time the second presentation of cheques was made in the bank, the same had become not acceptable by the bank on account of being nonMICR cheques. Accordingly, the petitioner had no role to play in return of cheques upon second presentation, but the same were not acceptable by the bank itself on account of technical reasons. As per proviso (a) of section 138 of the Negotiable Instrument Act, 1881, the cheque has to be presented within six months from the date it is drawn or within the period of its validity, whichever is earlier. This Court is of the considered view that bouncing of cheques upon second presentation on account of them being not acceptable by the bank (on account of being nonMICR cheque) was not on account of any act or omission of the petitioner. Accordingly, the said bouncing of cheques on second presentation cannot be a ground for prosecution under Section 138 of the Negotiable Instruments Act, 1881 as one of the conditions precedent for prosecution i.e the cheque itself should be valid on the date of its presentation, is not satisfied when the cheques are returned as not acceptable to the bank on account of being nonMICR cheques."
27. Further contradictions are found in the case of the complainant where in the evidence affidavit the complainant has deposed that accused approached the complainant in the month of October 2020 to help him to provide loan for a year but complainant extended a loan of Rs.10 lacs in CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 14 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:22:28 +0530 last week of October 2021 for a year i.e. till October 2022 but the said deposition of the complainant is against the date on the cheques where on the first cheque date is mentioned as 11.10.21 and on the second cheque date is mentioned as 18.10.21 and both are earlier than the last week of the October 2021. This court fails to understand why a person will issue the cheque first to the complainant before getting the amount, if any. No corrected evidence affidavit is ever filed by the complainant.
28. More contradictions are found as complainant has deposed in evidence affidavit that the accused will return the loan amount maximum till 08.10.2021 and stopped paying the interest in March 2021. Same is contradictory to the deposition made by the complainant where he stated that he has provided the loan in last week of October 2021. Therefore, it is also impossible that a person stopped paying the EMIs before granting the loan.
29. Furthermore, if we believe at the version of complainant that he has provided the loan to the accused in the last week of October 2021 then also deposition of complainant that two post dated cheques in question were provided by the accused to the complainant is contradictory in itself as when the loan has not been granted then how a person can issue post dated cheques to the complainant. Also, CW1 during cross examination has stated that cheque in question were given by the accused to him on 10.10.2021. Said fact is contradictory to the mortgage deed.
30. In addition to this, the complainant has stated that the accused was not having the sufficient balance in his account on the day of returning memo, however complainant has not brought any bank record of the accused or has not called any bank witness in support of his contention CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 15 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2024.04.23 17:22:33 +0530 during PSE or at the stage of CE. Complainant has even failed to bring his bank records to show that he has extended Rs.10 lacs loan to the accused in cash. As per the complainant he was the government servant and then why he has not transferred the money from his bank account which he was receiving as salary in his account and preferred the providing the amount in cash to the accused.
31. Complainant has failed to satisfy this court that why he was providing the loan of Rs.10 lacs to the accused at interest of 1% per month after leaving the bank interest. Moreover, no chat, no document, no video, no audio etc. are produced in support of his submission. Complainant has not satisfied the court that why and whether he has accepted this 10 lacs rupees cheque after giving up the interest on cheque amount or whether the said cheques in question were accepted in lieu of total liability or part liability.
32. Furthermore, contradictions are found in the mortgage deed Ex. CW1/2 and in evidence affidavit as in mortgage deed the date of providing of Rs. 10 Lac is written as 09.11.2020 but in the evidence affidavit complainant has stated last week of 2021. CW2 who was the witness to the document has stated in cross examination that transaction did not take place in his presence. CW2 and CW3 both had correctly admitted that mortgage deed was not stamped and attested by any authority. In the mortgage deed it is also mentioned that complainant returned the cheques to the accused. However, no cheque number is mentioned in the mortgage deed. Even CW2 during cross examination has stated that no cheque was given in his presence. These contraditions are also accepted by CW1 i.e. complainant during his cross examination.
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33. It is also deposed by complainant in evidence affidavit that the accused has issued post dated cheques, however the date, place and witnesses etc. while handing over the cheques are not stated by the complainant. Moreover, accused as a defence witness has brought a NCR report dt. 21.10.2019 showing that he has lost his Oriental Bank of Commerce Cheque i.e. one of the cheque in question. This fact is also destroying root of the complainant's case because the complainant deposed that loan was given later on and cheque was also handed over later on in 2021. This cannot be a case here that accused did two years long planning just to dupe the complainant. Also as per the complainant, the complainant executed the mortgage deed with the accused but he did not satisfy the court that why he did not execute any agreement at the time of providing the money or taking the cheques.
34. Complainant in evidence affidavit deposed that the accused has directed him that these cheques should be presented once there is go ahead by the accused but complainant did not agreed to this. In that sense also it cannot be said that cheque was given to discharge the liability by the accused. Complainant could not contradict DW1 and testimony of DW1 remains unchallenged and he/DW1 deposed the same facts during the entire case i.e. notice framing, statement of accused and in DE. Complainant also want to rely upon certain documents not brought by the accused in his support. However, the undersigned does not found the said documents relevant for conviction as complainant has to stand on his own legs and only then defence will turn up.
35. From the examination of the complainant, it is also found that the complainant did not tell the purpose for which he granted loan of Rs. 10 lacs to the accused that too when he was retiring within two months.
CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 17 of 20 Digitally signedSNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:22:45 +0530 Complainant himself admitted that he has not mentioned the loan in his ITR. Even no sanction/intimation letter is placed on record by the complainant which he has forwarded to his authority before granting the loan to the accused/anyone. As per the complainant no witness is brought who was present at the time of asking of loan or at the time of handing over money or at the time of handing over of cheque. No chat or video/audio recording is brought by the complainant in his support.
36. In the absence of any credible evidence, it is impossible to ascertain that whether the liability as mentioned by the complainant is correct. Mere verbal submission of CW1 is not enough evidence in the eyes of law without supporting documents. This makes story of complainant highly improbable. Thus, evidence of the complainant does not inspire confidence due to these severe contradictions.
37. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. As per the facts and circumstances of this case accused has led cogent and believable evidence to support his defence.
38. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 18 of 20 Digitally signedSNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:22:50 +0530 "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 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."
39. The primary burden upon the accused was to punch holes in the version of the complainant in order to rebut the presumptions and the standard of proof required from him was preponderance of probabilities;
and the accused has been able to do the same by bringing out the inconsistencies and contradcitions in the version put forward by the complainant.
40. Hence, doubt is raised upon the story deposed by the complainant. The contradictions and omissions in the evidence of complainant could be removed by bringing witness or any audio/video recording or any documentary evidence or any chating or by showing the transfer from the bank or by disclosing the same in evidence etc. Non production of any money lending evidence by the complainant to accused is also suggesting adverse inference against her and giving extra leg to the defence of the accused that he has no such liability towards the complainant and complainant has misused the security cheque. As per the above discussion, it can not be said that the cheque was drawn by him in favour of the complainant. Therefore, the essential ingredient (i) as discussed in the preceding paragraph does not stand fulfilled.
CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 19 of 20 Digitally signedSNEHIL by SNEHIL SHARMA SHARMA Date: 2024.04.23 17:22:56 +0530
41. As observed by the Supreme Court in State of Rajasthan v. Kalki (1981) 2 SCC 752) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party;s case, material discrepancies do so. Here the above discussed discrepancies are material one and fatal to the case.
42. Keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the ingredients mentioned at Para No. 20 of this judgment are not completely fulfilled. Some of the ingredients are fulfilled which need not to be discussed in detail. These circumstances attract benefit of doubt in favour of the accused.
43. In my view, the complainant has failed to prove that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability and has failed to prove his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused Yogesh Singh is, thus, stands acquitted for the said offence.
Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date: 2024.04.23 17:23:04 +0530 Announced in Open Court (SNEHIL SHARMA) today on 23.04.2024 MM (NI Act) Digital Court, NORTH EAST,KARKARDOOMA, DELHI CC NO.825/2021 Karampal Singh vs Yogesh Singh Page 20 of 20