Delhi District Court
N.C. Gupta vs Nitin Chauhan Cc No.282/10 on 19 December, 2012
IN THE COURT OF METROPOLITAN MEGISTRATE (NI ACT)-1,
CENTRAL: ROOM NO.356, TIS HAZARI COURT COMPLEX, DELHI
N.C. Gupta vs Nitin Chauhan CC No.282/10
19.12.2012
Judgment u/s-264 CrPC
(Brief Statement of Reasons for finding as required U/s 264 Cr.P.C.)
The entire controversy in the present case revolves around the question whether accused has paid the amount to the
complainant against these two cheques or not. Whereas the accused claims that he had paid the amount of the instant cheques
to the complainant through one Ashutosh who was the employee of the complainant, the claim of the complainant is that no
such payment was made to the employee of the complainant namely Ashutosh.
2. The complainant has been cross-examined in detail. The complainant does not know the exact transaction against
which cheque in question was issued. The complainant accepted that Ashutosh was his employee and was doing a job of
collection of payment for him. Complainant further accepted that prior to the issuance of cheque in question, all the payment
reflected in the Statement of Account were collected by his employee and deposited with him. Complainant further accepted
that prior to the year 2006, Ashutosh had collected payment from the accused on various occasions. The complainant,
however, denied that his staff had issued receipts of payment collected from accused by them. However, he accepted that the
various amounts shown in the several receipts filed by the accused were also found mention in the Account Statement filed by
him. When the complainant was confronted with the receipts Mark-X and Y, he denied that the same was issued by his
employee. However, complainant has stated in his cross-examination that he has never seen his employee Ashutosh signing.
For this reason, it seems that complainant could not have actually denied the issuance of receipts by his employee.
2.1. The accused has examined the said Ashutosh in his defence. The said Ashutosh claimed that he was very trustworthy
of N.C. Gupta (the complainant herein). He further accepted that he had visited HR paints on several occasions to collect the
payment on behalf of N.C. Gupta. The witness Ashutosh also accepted the signature on the receipts Mark-M, N, O, P, Q, V, X
and Y (It may be noted that no document Mark-W was ever filed and due to typographical mistake, the alphabet 'W' finds
mention in the testimony and there is no dispute about this position between the parties). The witness, however, in the cross-
examination claimed that the content mentioned in Mark-X and & are not in his handwriting. But, the complainant never tried
to suggest that these documents Mark-X and Y are forged and frivolous. Whether the contents have been filled in by the
signatory or not becomes immaterial once he accepts the signature more so when no case has been put forth by the
complainant that both the receipts Mark-X and Y are forged and fabricated. Why any person will sign on two blank papers
without filling the contents? Complainant does not have any explanation. However, during the arguments, ld. counsel for the
complainant has tried to clarify the position by stating that the other particulars of receiving the amounts have been filled up
by the employee Ashutosh but the portion indicating cheque number has not been filled in by the employee Ashutosh. I
consider that the same cannot help the complainant. Not only the cheque numbers but also the amount of the respective
cheques are same viz a viz the cheques in question. Ld. counsel for the complainant has further tried to contend that these
N.C. Gupta vs Nitin Chauhan CC No.282/10 1
receipts were received against some other transaction of the same amount. However, the same has no support as the
complainant does not even know as to against which transaction cheque in question was given to him. Further by claiming the
fact that receipts were never issued by his employee, the complainant has made himself vulnerable as the falsehood of his
claim has been established by the testimony of his employee Ashutosh Kumar. There is no reason to disbelieve the testimony
of Ashutosh Kumar who, as per his unrebutted claim, was very trustworthy of the complainant.
2.2. It appears that accused wanted to examine himself in defence but never done so. However, this fact cannot go against
the accused as he is having no obligation to step into the witness box. It further appears that accused has also examined one
Head Constable Satish Kumar. It appears that three witnesses i.e. accused himself, HC Satish Kumar and Ashutosh were to be
examined in defence, and Ashutosh has been examined with a title DW3 and there is no title appearing for HC Satish Kumar.
However, it does not change the character of testimony given by both the witnesses. It is noted only to avoid any confusion. It
is further noticed that accused later on has not examined himself in defence.
2.3. It is well settled law that marking or giving an exhibit to a document cannot change the character of document or
cannot affect the admissibility thereof. If a document is admissible in evidence, it has to be read in evidence irrespective of the
fact that the same was marked or exhibited. In the present case, signature on Mark-X and Y has been admitted by the witness
Ashutosh and both the documents are in original, therefore, there is no reason to discard these documents from the evidence.
Once these documents i.e. Mark-X and Mark-Y are admitted and we keep the above discussion in view alongwith the
fact that it was Ashutosh who was collecting payment on behalf of the complainant from the clients and further that on several
occasions Ashutosh had collected the payment from the accused, we have to believe that Ashutosh had also collected the
payments against instant two cheques. It is entirely a different matter whether Ashutosh i.e. employee of the complainant
deposited the said collected amount with the complainant or not. Accused was having no control over such events.
3. In such view, the complainant could not have presented both the cheques for payment.
4. It is well settled law that the accused to prove his innocence is not required to establish the factum beyond all
reasonable doubts. He can always prove his innocence by the preponderance of probabilities. Mandatory presumptions of law
do not relieve the prosecution from establishing the foundational facts. It is a cardinal principle of criminal jurisprudence that
the Prosecution (Complainant) has to stand on its own leg. The burden is so heavy that no blemishes in the story of the accused
can give a right to the complainant to claim that his version should be preferred, whereas the burden on the accused is slightly
light as he has to discharge the burden by preponderance of probabilities. The accused can always rely upon the material and
circumstances brought on record by the complainant. If the material and circumstances available on record in its entirety
suggest the existence of any circumstance which is contrary to the stand of the Prosecution (Complainant), the prosecution has
to fail and the accused has to be given benefit of doubt. It is further well settled law that even if two view are possible, the
court should adopt the view which does not interfere in the life and liberty of any person. (See a constitution bench judgment
of Hon'ble Supreme Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984 AIR 1622 ).
N.C. Gupta vs Nitin Chauhan CC No.282/10 2
4.1 Having heard both the sides and after going through the record, I am of the view that the present complaint cannot
succeed.
Nature and extent of rebuttal:
5. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of Corruption Act has observed in re-
spect of presumptions of law in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can
prove the contrary. The quantum and the nature of proof required to displace this
presumption may vary according to the circumstances of each case. Such proof
may partake the shape of defence evidence led by the accused, or it may consist
of circumstances appearing in the prosecution evidence itself, as a result of cross-
examination or otherwise. But the degree and the character of the burden of proof
which s. 4(1) casts on an accused person to rebut the presumption raised
thereunder, cannot be equated with the degree and character of proof which under
s. 101, Evidence Act rests on the prosecution. While the mere plausibility of an
explanation given by the accused in his examination under s. 342, Cr.P.C.
may not be enough, the burden on him to negate the presumption may stand
discharged, if the effect of the material brought on the record, in its totality,
renders the existence of the fact presumed, improbable. In other words, the
accused may rebut the presumption by showing a mere preponderance of
probability in his favour; it is not necessary for him lo establish his case beyond a
reasonable doubt-see Mahesh Prasad Gupta v. State of Rajasthan (1). Another
aspect of the matter which has to be borne in mind is that the sole purpose of the
presumption under s. 4(1) is to relieve the prosecution of the burden of proving a
fact which is an essential ingredient of the offences under s. S (1) (2) of the
Prevention of Corruption Act and s. 161, Penal Code. The presumption
therefore can be used in furtherance of the prosecution case and not in
derogation of it. If the story set up by the prosecution inherently militates
against or is inconsistent with the fact presumed, the presumption will be
rendered sterile from its very inception, if out of judicial courtesy it cannot
be rejected out of hand as still born."
5.1. Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007
has observed as under:
N.C. Gupta vs Nitin Chauhan CC No.282/10 3
"15. The Act contains provisions raising presumption as regards the negotiable
instruments under Section 118(a) of the Act as also under Section 139 thereof. The said
presumptions are rebuttable ones. Whether presumption stood rebutted or not would
depend upon the facts and circumstances of each case.
16. The nature and extent of such presumption came up for consideration before this
Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39]
wherein it was held :
"30. Applying the said definitions of "proved" or "disproved" to the
principle behind Section 118(a) of the Act, the court shall presume a
negotiable instrument to be for consideration unless and until after
considering the matter before it, it either believes that the consideration
does not exist or considers the non-existence of the consideration so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that the consideration dos not
exist. For rebutting such presumption, what is needed is to raise a probable
defence. Even for the said purpose, the evidence adduced on behalf of the
complainant could be relied upon."
17. This Court clearly laid down the law that standard of proof in discharge of the
burden in terms of Section 139 of the Act being of preponderance of a probability, the
inference therefor can be drawn not only from the materials brought on record but
also from the reference to the circumstances upon which the accused relies upon.
Categorically stating that the burden of proof on accused is not as high as that of the
prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value.
Presumptions are raised in terms of the Evidence Act. Presumption drawn
in respect of one fact may be an evidence even for the purpose of drawing
presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant may not adduce
any evidence to discharge the initial burden placed on him, a "fortiori" even
an accused need not enter into the witness box and examine other witnesses
in support of his defence. He, it will bear repetition to state, need not
disprove the prosecution case in its entirety as has been held by the High
Court.
N.C. Gupta vs Nitin Chauhan CC No.282/10 4
39. A presumption is a legal or factual assumption drawn from the existence
of certain facts."
5.2. Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed
that:-
"30. The proviso appended to the said section provides for compliance with legal
requirements before a complaint petition can be acted upon by a court of law. Section
139 of the Act merely raises a presumption in regard to the second aspect of the
matter. Existence of legally recoverable debt is not a matter of presumption under
Section 139 of the Act. It merely raises a presumption in favour of a holder of the
cheque that the same has been issued for discharge of any debt or other liability.
31.The courts below, as noticed herein before, proceeded on the basis that Section
139 raises a presumption in regard to existence of a debt also. The courts below, in
our opinion, committed a serious error in proceeding on the basis that for
proving the defence the accused is required to step into the witness box and
unless he does so he would not be discharging his burden. Such an approach on
the part of the courts, we feel, is not correct.
32. 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 record. An accused has a constitutional right to maintain silence.
Standard of proof on the part of the accused and that of the prosecution in a criminal
case is different.
... ....
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a defence on the part of the
accused is 'preponderance of probabilities'. Inference of preponderance of
probabilities can be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which he relies.
......
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn N.C. Gupta vs Nitin Chauhan CC No.282/10 5 should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:-
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "
5.3 In the facts and circumstances of the present case, if we make a fine balance between the two propositions i.e. reverse onus and presumption of innocence, it can be safely held that accused has successfully probabilised his defence by showing that the non-existence of debt or liability and consideration is probable or its non existence is so probable that a prudent man would under the circumstances act upon the supposition that it did not exist.
5.4. I am of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has further held that:-
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on N.C. Gupta vs Nitin Chauhan CC No.282/10 6 the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Conclusion:-
6. I accordingly return a finding of not guilty against the accused.
7. Accused Nitin Chauhan is acquitted from the charges in the present complaint case i.e. for offence U/s 138 NI Act.
8. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM (NI Act)-01, Central District, Delhi 19.12.2012 N.C. Gupta vs Nitin Chauhan CC No.282/10 7