Delhi District Court
M/S Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal Cc No.5765/11 on 2 November, 2012
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-356, TIS HAZARI COURT COMPLEX, DELHI
02.11.2012
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11
JUDGMENT u/s 264 Cr.PC.
(Brief Statement of Reasons for finding as required U/s 264 Cr.P.C.)
The controversy lies in a very narrow campus. The accused wanted to avail the services of
complainant for a tour and issued a post dated cheque of Rs.2,28,581/- to the complainant but due to
delay in Visa she was called upon to board the flight after one day of the scheduled departure of the
group in which she was to travel but accused did not avail of the services of the complainant on
such delayed date. Despite that the complainant presented the said post dated cheque on the pretext
that it had already expanded certain amount on the arrangement for the tour of the accused.
1.1. The AR of the complainant has been cross-examined by the complainant and accused has
also examined herself in defence apart from witnesses of post office.
1.2. Both the parties have been heard.
1.3. The question is very simple. Whether the complainant was entitled for the amount of cheque
despite the fact that the services of complainant were not availed of by the accused.
1.4. It is the own case of the complainant that there was a delay in issuance/delivery of Visa and,
therefore, accused was called upon to fly one day after the scheduled departure of the group. Who
was at fault ?
1.5. The total package was Rs.3,16,000/-. Out of which complainant had already received Rs.
51,000/- and Rs.57,152/- from the accused (see cross-examination of AR of the complainant).
1.6. Further Visa formalities were being made by the complainant and not by the accused. It is
clear from the following extracts of the cross-examination of AR of the complainant:
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 1
"It is correct that 22.09.2010 the company informed the accused that UK Visa has been
obtained.............".
".............. and it was also informed to the accused on behalf of Paras Holidays that Schengen
Visa will be applied next day."
1.7. Even the complainant company had taken the Passport of the accused at the time of booking
and had deposited the same to the Embassy. If complainant company was making the formalities of
Visas, it was their duty to make available all the necessary documents before the scheduled date of
departure so that any group member would go alongwith the group on the scheduled date. Prima
facie fault lies with the complainant in issuance/delivery of Visa. The AR of the complainant,
however, introduced an element of requirement of affidavit by the Schengen authorities and
contended that the Visa could not be obtained as the accused failed to provide such affidavit.
1.8. AR of the complainant, however, admitted that he had not conveyed this fact to the accused
in writing and that he was not even having any proof of giving the information on telephone. Even
further he accepted that the date of any such information was nowhere recorded in his company.
Even he accepted that he had not sent such information to the accused by E-mail or by SMS. He
further stated that he could not tell any cause for giving no information to the accused by SMS or E-
mail.
1.9. AR of the complainant in his cross-examination has further accepted that on 28.09.2010 his
company had called the accused and assured that Visa would be coming on that day. He, however,
accepted that even on 30.09.2010 Visa was not received by the Complainant company.
1.10. In such circumstances, it would be hard to believe that accused was at fault in not procuring
the Visa.
1.11. In his complaint and affidavit, this AR of the complainant has claimed to have well
conversant with the facts. However, in his cross-examination he gave the answer of several
questions in the form "I do not know............", "I cannot tell...........", "I am not aware..........." etc.
1.12. This is clearly showing that the AR has tried to conceal several material facts.
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 2
1.13. Complainant has denied to have received any reply of the legal demand notice but the
accused examined witnesses from post offices of Karol Bagh and Civil Lines. The witness from
Karol Bagh post office brought a duly attested delivery slips record Exh.DW1/A (original was seen
and returned). Even in his cross-examination, he explained that he had delivered the envelope to
one person in the office of the addressee who had taken the same inside the room and got it signed.
This document is having an entry of postal receipt No.ED222120252IN on 04.01.2011 to Paras
Holidays. There is no reason to disbelieve this independent witness. In such circumstances, the
claim of the accused that she had sent a reply of the legal demand notice of the complainant has to
be believed. Non disclosure of such factum in the complaint and affidavit by the complainant is also
showing concealment of facts on the part of the complainant.
1.14. It is clear that complainant was at fault for delay in issuance/delivery of Visa to the accused.
A Tour Operator cannot force any person to change her/his plan of tour and cannot ask to fly on any
subsequent date. Individuals may have several necessities to fly on a particular date (in the present
case claim of the accused is that her husband was to join her in the way). Any Tour Operator cannot
say that by not availing the changed schedule, any group member of the tour has caused losses to it
and, therefore, the Tour Operator is entitled to the entire amount of the package. It was not a case
where schedule of entire group was changed. In the present case, schedule of only one person was
tried to be changed by the Tour Operator and that too for the fault of non issuance/delivery of Visa
which lies upon the Tour Operator itself. In such circumstances, it cannot be said that by not flying
on the changed date the accused has caused any loss to the Tour Operator i.e. the Complainant.
Rather this may come within the purview of deficiency of services. However, this court does not
want to express any opinion as the matter is already subjudice before concerned Consumer Forum.
Even if it is believed that some loss was caused to the complainant Tour Operator, it was not
entitled to present the instant cheque of Rs.2,28,581/-. It is pertinent to note that the total package
was of Rs.3,16,000/- and accused had already made a payment of Rs.1,08,152/- (Rs.51,000/- + Rs.
57,152/-) to the complainant. Even the accused had not availed of the group tour. In such
circumstances, it is held that complainant failed to justify the presentation of the cheque for liability.
1.15. Accused has also examined herself in defence and deposed on her line of defence. The
complainant cross-examined the accused. The complainant tried to establish that it was the fault of
accused in joining the Embassy to fulfill the requirement of NOC of husband of the accused which
resulted in delay in issuance of Visa. The suggestion given by the complainant was denied by the
accused. Complainant further tried to establish that the husband of the accused was required to get
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 3
Visa from Sudan Embassy which was not easy and that accused was not sure about the Visa of her
husband from Sudan Embassy. Even such suggestions were denied by the accused.
1.16. I do not find any reason to disbelieve the accused only on the ground that accused is
interested witness. This is not the law in India.
1.17. Parties have filed several documents. Documents of which only photocopies have been filed
have not been relied upon.
1.18. 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 ).
1.19. 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:
2. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of
Corruption Act has observed in respect of presumptions of law in Trilok Chand Jain vs State Of
Delhi 1977 AIR 666 as under:
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 4
"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."
2.1. 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:
"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
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 5
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.
39. A presumption is a legal or factual assumption drawn from the
existence of certain facts."
2.2. 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
M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 6
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 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 M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 7 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. "
2.3 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.
2.4. 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 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:
3. I am of the opinion that the above attending circumstances are sufficient to displace the burden of proof which is somewhat lighter on accused. The law regarding the degree of proof required from the accused to prove his defence is well settled. The accused is required only to prove by preponderance of probabilities that the defence bears ring of truth. The accused is not required to M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 8 prove his defence beyond reasonable realm of doubt as is required to be done by the prosecution. Accused has created a reasonable doubt in respect of existence of liability and consideration. Complainant failed to discharge the sifted burden. In such circumstances, prosecution has to fail.
4. I accordingly return a finding of not guilty against the accused.
5. Accused Roopali Aggarwal is acquitted from the charges in the present complaint case i.e. for offence U/s 138 NI Act.
6. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM(NI Act)-01, Central 02.11.2012 M/s Paras Holidays (P) Ltd. vs Ms. Roopali Aggarwal CC No.5765/11 9