Delhi District Court
Interpreted Recently By The Hon'Ble ... vs . on 31 March, 2011
IN THE COURT OF SH. ARVIND BANSAL
METROPOLITAN MAGISTRATE
NEW DELHI DISTRICT: NEW DELHI
Shri Satbir Singh Verma
S/o Shri Arjun Singh Verma.
Resident of T41, Sarai Kale Khan,
New Delhi.
.....Complainant
Versus
Shri Dhirender Chauhan
S/o Shri Jai Prakash Chauhan,
Prop. M/s. Chauhan Graphic Prints,
T58, Sarai Kale Khan, Nangli Razapur,
New Delhi.
.....Accused
(a) Complaint Case No. 848/1(Original CC No.1567/1/03)
(b) Date of Institution: 7.10.2003
(c) Offence: U/s 138, Negotiable Instruments Act,
1881.
(d) Plea of accused Pleaded not guilty and claimed trial.
(e) Argument heard and
reserve for order: 8.3.2011
(f) Final Order: Acquitted
(g) Final Judgment: 31.5.2011
:2:
BRIEF REASONS FOR JUDGMENT
FACTS OF THE CASE:
1. The present case is a complaint under section 138 of Negotiable Instruments Act 1881 (hereinafter referred to as 'the Act') filed by the complainant Satbir Singh Verma on the averments that he on the request of accused Dhirender Chauhan gave Rs. 4 lacs in cash to him. The accused issued a cheque bearing no. 519351 dated 18.8.2003 amounting to Rs. 4 lacs drawn on State Bank of Saurashtra, New Delhi and assured the complainant that the cheque would be encashed at the time of presentation.
2. It has been averred that as per the assurance of accused, the complainant deposited the said cheque with its Banker i.e., UCO Bank, Nizamuddin, Church Road, Bhogal, New Delhi but the same got dishonored and returned unpaid by the accused banker with remarks "funds insufficient" on 26.8.2003. It has been averred that the complainant contacted the accused but the accused flatly refused to pay the amount. It is averred that the accused knowingly and deliberately cheated the complainant to the extent of Rs. 4 lacs.
3. The complainant served the legal notice dated 8.9.2003 to the accused through registered AD and UPC. The registered AD was served on accused on 10.9.2003. AD Card was received back. UPC was not received. Despite service of the legal notice, the accused :3: did not pay the sum legally due qua the notice within stipulated time of 15 days of receipt of notice and hence the present complaint was filed against the accused.
PROCEEDINGS IN THE COURT:
4. The accused was summoned vide order dated 7.10.2003 for the offence u/s 138 of the Act in respect of the aforesaid cheque. Thereafter, the accused appeared before the Court and was admitted to bail on 18.11.2003 . Notice u/s 251 Cr.P.C for the offence u/s 138 N I Act was served upon the accused on 13.1.2004 to which he pleaded not guilty and claimed trial and the matter was fixed for complainant evidence.
5. The complainant in support of his case, led his evidence through himself by way of affidavit reiterating the averments made in the complaint. He relied upon the following documents, i.e., the dishonored cheque Exhibit CW1/A , return memo Exhibit CW1/B, legal notice Exhibit CW1/C, postal receipt and UPC Exhibit CW1/D and E, the AD card Exhibit CW1/F. The complainant was duly cross examined by the counsel for accused.
6. After complainant evidence was led, the statement of accused was recorded u/s 313 Cr.P.C wherein all incriminating material existing on record including exhibited documents were put to the accused to which the stand of the accused was of general denial. He stated that he had issued the impugned cheque blank duly signed to one Om Pal who was running Private Chits (committee). He stated :4: that he was told by Om Pal that one Shri Vijay Pal, ExCouncilor had taken the cheque from Om Pal and handed over the same to the complainant to misuse the same. He admitted that he received the legal notice, and sent a reply to it. He stated that he wanted to lead the defence evidence.
7. The accused led his defence by examining one Shri Om Pal as DW1 and his father Jai Prakash Chauhan as DW2. DW1 was examined in chief wherein he stated that he knows the accused since his childhood and complainant for last 1520 years. He deposed that he was having two cheques issued by accused. One was a blank cheque and another was for Rs. 70,000/ in the name of Vikas. Accused had paid Rs. 70,000/ to Vikas. He stated that he alongwith Vikas was sitting at his shop when ExCouncilor Vijay Pal came to his shop. DW1 told him that he had advanced Rs. 70,000/ to accused through Vikas but he was not making payment. He stated that he took away both the cheques and stated that he shall get the money arranged. Exhibit CW1/A was stated to be the said blank cheque. He stated that next day he went to Vijay Pal for return of cheque but Vijay Pal told him that he had sent the same person alongwith the cheque to get money from accused and will return the cheque next day. He stated that he did not return the cheque and the same was presented. Later the accused asked him about his cheque :5: and it was then that accused disclosed every detail to him. DW1 was duly crossexamined by the ld. counsel for complainant.
8. DW2 filed his evidence by way of affidavit wherein he stated that he is a local social worker and General Secretary of Nangali Razapur Welfare Society (Regd.), New Delhi and the society looks after the welfare of residents of village and the Shiv Mandir located in the SouthEast corner of the village. He stated that the Society had filed a case of the Shiv Mandir land against one Dal Chand as he had illegally occupied the land of the Shiv Mandir measuring 530 Sq. yards. It is stated that Dal Chand sold a portion of this land measuring 253 Sq. yards to one Sharad Yadav on 6.7.2000 and Sharad Yadav sold the said piece of land to Satbir Singh i.e., the complainant on 6.12.2001. He stated that the said sale was against the orders of the various Hon'ble Courts of Delhi. He has filed the copies of the relevant orders which are Exhibit DW3/A, B and C.
9. He stated that the aforesaid suit was being pursued by him being the General Secretary of the abovesaid society and, therefroe, the complainant who was the purchaser of the land was annoyed and pressurized him to withdraw the above suits to which he did not agree and the complainant threatened him for the dire consequences. He stated that the complainant somehow came in possession of one blank signed cheque of his son from Om Pal Singh, misused the :6: same and filed this false case. He stated that his son never took any friendly loan from complainant. He has filed on record the photocopy of the GPA and SPA of the aforesaid sale purchase of the land of Shiv Mandir which are mark B and C. He was also duly crossexamined on his affidavit by ld. counsel for complainant.
10. On the request of learned counsel for accused, the DE was closed. The final arguments on behalf of both the parties were heard at length. I have carefully gone through the whole material on record filed by both the parties in support of their respective cases. APPRECIATION OF EVIDENCE:
11. For proving an offence u/s 138 of N I Act, all the following ingredients are required to be fulfilled by the complainant :
1) That there is a legally enforceable debt or liability,
2) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
3) The cheque so issued was returned unpaid by the banker of the drawer,
4) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of said notice.:7:
INGREDIENTS NO. 1 & 2.
12. Before going on to decide ingredient no. 1 and 2, it is necessary here to reproduce section 118 (a) and section 139 of the Act which deal with the law particularly necessary to decide ingredient no. 1 and 2. The section 118(a) reads as:
"that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration".
And Section 139 reads as under:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability".
13. The said two sections have been elaborately discussed, and interpreted recently by the Hon'ble Supreme Court in Rangappa Vs. Sri Mohan, 2010 AIAR Cri 584. In this matter the Hon'ble Supreme Court disapproved the following observations of its own in :8: Krishna Janardhan Bhat Vs. DuttaTraya G. Hegde (2008) 4 SCC 54 i.e., "... the existence of legally recoverable debt is not a matter of presumption u/s 139 N I Act..."
and approved the following i.e., "...it merely raises a presumption to the favour of the holder of cheque that the same has been issued for discharge of any debt or any liability..."
Thus, the Hon'ble Supreme Court approved a dual proposition that Section 139 of the Act raises two presumptions , (a) with regard to the existence of legally recoverable debt and (b) with regard to the issuance of cheque for a legally recoverable debt or liability.
14. The following observations of the Hon'ble Supreme Court in Hiten P Dalal Vs. Bratindra nath Banerjee (2001) 6 SCC 16, at this stage are important;
"..because both Sections 138 and 139 require the Court 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn... it is obligatory on the Court to raise this presumption in every case where the factual basis for raising the presumption has been established. It introduces an exception to the general rule as to the :9: burden of proof in criminal cases and shifts the onus on to the accused".
But the standard of proof to discharge the burden shifted on accused to rebut the presumption raised by the Court U/s 139 is not the same as upon the prosecution to prove the case.
The observations of the hon'ble Supreme Case in the case Krishna Janardhan Bhat Vs. Dutta Traya G. Hegde (2008) 4 SCC 54 are important:
" the standard of proof for accused is preponderance of probabilities. The standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Whereas prosecution must prove the guilt of an accused beyond all unreasonable doubt, the standard of proof as to prove a defence on part of the accused is Preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to circumstances upon which he relies". :10:
This settled position finds mention in the Rangappa (supra) in para 14 in the following words:
"...it is a settled position that when an accused has to rebut the presumption u/s 139, the standard of doing so is that of preponderance of probabilities...".
15. In the case in hand, the presumption U/s 139 N I Act is a rebuttal presumption of law. In view of the observations of Hon'ble Supreme Court in Hiten P. Dalal the complainant through the contents of its affidavit alongwith the documents filed on record (which have been duly exhibited) have given sufficient factual basis to the Court to raise a presumption of law U/s 139 of the Act that the cheque must have been issued in discharge of a legally recoverable debt or liability.
16. To rebut the said presumption raised by the Court in view of the settled law, the accused has cross examined the complainant at length, got his statement U/s 313 recorded and thereafter produced two defence witnesses in Court in support of his case.
17. This is the argument of the accused in rebuttal and defence to the case of complainant that first, the said cheque of the accused was lying duly signed but blank otherwise with one Om Pal Singh of Nangali Rajapur Village and the complainant procured the same from :11: him through one ExCouncilor Vijay Pal, second, that the complainant and accused were having strained relationship at the time when the loan of Rs. 4 lacs was allegedly advanced to accused and the impugned cheque was allegedly issued by accused to complainant and, therefore, there is no probability that the loan could have been advanced and impugned cheque issued consequently and third, that the complainant does not have the financial capability to advance the huge amount of loan as alleged in the complaint. The counsel for accused has throughout elaborated on these rebuttals and defences.
18. The accused in his statement U/s 313 Cr.P.C stated that no such amount of Rs. 4 lacs was given. He stated tht he had handed over the blank signed cheque to one Om Pal who was running Private Chits(committees). He stated that Om Pal told him that ExCouncilor Vijay Pal had taken the cheque from Om Pal and handed over to complainant who misused the same. He stated that he had received the legal demand notice and replied the same thereafter.
19. To establish the first defence, the accused produced DW1 Ompal Singh for examination. In his examination in chief he deposed that he was in possession of the impugned cheque of accused which was duly signed but blank otherwise and ExCouncilor Vijay Pal took the same from him to get the DW1 his money back from accused. :12: The said cheque was not returned to him by Vijay pal and later the said cheque was presented in Bank. The accused told the details of this presentation to him when he came to Om Pal (DW1) to ask for return of his cheque. In his crossexamination, DW1 deposed that perhaps the cheque was given to Vijay Pal in the month of July 2003 and it was presented the next day when the same was given to Vijay Pal. He denied the suggestion of counsel for complainant that cheque was never given by him to Vijay Pal as wrong. He further denied as wrong the suggestion that he was deposing falsely at the instance of accused. He deposed that he did not complain the police about non return of cheque by Vijay Pal.
The complainant CW1 in his crossexamination denied as wrong the suggestion that he had never advanced any loan to accused and the impugned cheque was lying with Om Pal. He deposed that it is incorrect that he misused the cheque by removing the same from Om Pal.
20. To further rebut the presumption against him, the accused had tried to raise probabilities of doubt about advancement of loan and issuance of impugned cheque as such through his another defence. He produced DW2 Jai Prakash Chauhan (his father) for examination. In his affidavit he stated that being the General Secretary of Nangali :13: Razapur Welfare Society (Registered), he was looking after the welfare of villagers and as a part of the same, the society filed a Civil suit against one Dal Chand of Nangali, Razapur who was allegedly holding about 530 Sq. Yards of common village land with one Shri Mandar on it, under encroachment .
He deposed that said Dal Chand allegedly sold a portion of this land to one Sharad Yadav of Sarai kale Khan on 6.7.2000 and said Sharad Yadav sold the same to complainant on 6.12.2001. The alleged Civil suit at the intervening time was pending between the said society on one hand and Dal Chand and others on opposite. The copies of some orders of those times have been placed on record by DW3 as DW3/A, B and C.
21. It is the argument of counsel for accused that at the particular time when the loan was allegedly advanced by the complainant to accused, the complainant had already bought the property. In his crossexamination CW1 deposed that the loan was advanced somewhere in June 2003. The Civil suit as stated above was pending at that time. DW2 has deposed that complainant was annoyed at him for continuing the suit and, therefore, pressurized him to withdraw the same. He further deposed that the complainant somehow came in possession of impugned cheque and filed a false case against his son. It has been supportingly argued that complainant used the impugned :14: cheque as a weapon to pressurize DW2 and accused to withdraw the Civil suit because he was the transferee of land which was the issue of that Civil suit. It is here, that counsel for accused has pointed towards a strained relationship between the two parties and questioned the advancement of loan and issuance of cheque.
22. In his crossexamination, DW2 denied as wrong the suggestion that he was deposing falsely as accused was his son. He deposed that he was not present when accused handed over the cheque to Om Pal. He admitted that he had filed several complaints against complainant making him involved in cases U/s 107/151 Cr.P.C. The statement of DW2 to the effect of filing complaints against complainant in crossexamination strengthen the version of strained relationship of both the parties.
23. The questions/suggestions regarding the suit and enmity between the two parties were asked even to complainant in his cross examination as DW1. He deposed while crossexamination that he knows Dal Chand as he is of the same village. He deposed that on the date of crossexamination i.e., 6.7.2006 no case was pending in the High Court about sale of land of Shiv Mandir. He stated that he does not know whether father of accused was pursuing that matter being Secretary of a Committee and, therefore, he had any jealousy with accused and he falsely implicated him. He deposed :15: that he does not know if the accused had any dispute with Ex Councilor Vijay Pal about Shiv Mandir and, therefore, he did all this to take revenge from accused.
24. The accused has further elaborated his defence by questioning the financial capability of complainant to advance the loan of huge amount of Rs. 4 lacs. It has been argued that when the complainant himself was not in a financial capacity to have a sum of Rs. 4 lacs at his disposal then how can he advance a friendly loan of that amount. In his crossexamination CW1 was asked as to how did he arrange the said money to which he answered that he did not withdraw the same from any bank but had taken the same from his in laws and friends. He deposed that he took a sum of Rs. 1.5 lacs from one of his friends Nitin Malhotra and borrowed Rs. 1.25 lacs from his in laws. The said amount has been stated to be borrowed in first week of June 2003 and the complete 4 lacs were advanced to accused in 23 installments in June 2003. When asked as to how much amount did he contribute himself, his answer was Rs. 50,000/ (emphasis supplied). Immediately thereafter, he again said that he contributed Rs. 1.25 lacs.
He deposed that he does not remember the father's name of his friend Nitin Malhotra and also does not know his residential address but knows that he stays in Sarita Vihar, PocketA. He stated that the :16: amount was paid to accused in 23 installments and later he stated that it was paid in 34 installments. First, he stated that he took money from his inlaws and his friend in first week of June 2003 but later stated that he does not remember when had he taken the amount. He stated that there is no witness to said transaction.
The counsel of accused has drawn the attention of Court towards discrepancies in complainant's version of advancing alleged friendly loan. He argued that complainant does not remember the exact amount which he himself contributed, he does not know the exact number of installments in which the said amount was paid, he questions the case of complainant for his inability or reluctance to call either his inlaws or his friend as complainant witness in support of his case and consequently his complete version of advancement of loan remains a bald averment . At this stage, the observations of Hon'ble Supreme Court in case titled K Prakashan Vs. T K Surenderan 2007 (4) Criminal Court cases 371(SC) are significant to be quoted.
"....the criminal Court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matte which would include the circumstances which have been brought on record by the parties. The :17: complainant has been found to be not a man of means. He had allegedly advanced a sum of Rs.
1 lac .... he although had himself been taking advances either from his father or brother or third parties without making any attempt to realise the amount is said to have advanced sums of Rs. 86,000/ Rs. 28,000/, Rs. 50,000/, Rs. 40,000/ and Rs. 12,000/ on subsequent dates.... he also did not examine his father and brothers to show that they were men of means and in fact advanced a huge sum to him only for the purpose of grant of loan by him to the appellant....."
"...the standard of proof in discharge of the burden in terms of Section 139 of the Act being preponderance of probability, the inference therefore, 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...":18:
The Hon'ble Supreme Court upheld the order of acquittal in this particular case.
25. The rebuttals of accused to the presumptions of law raised against him, in the opinion of Court raise a probability or doubt about the version of Court in the present matter. At this stage, it is equally pertinent to scrutinize that whether complainant as prosecutrix has proved its case beyond reasonable doubt or not.
26. The case of complainant is straight and simple that he advanced a friendly loan of Rs. 4 lacs qua which the impugned cheque was issued which on presentation got dishonored for insufficiency of funds. A legal demand notice was sent to accused to which, although he replied but did not make payment of money due and hence the complaint.
27. The complainant, first, has not produced any witness to substantiate his claim that the loan of Rs. 4 lacs was advanced, second, has not then summoned either his fatherinlaw or his friend who according to him allegedly lent him money to advance loan, third, he was shown no ground, forget about a strong one, as to why did he borrow money to advance loan to accused, fourth, he has not denied that he did not buy the alleged land on which a Shiv Mandir is situated for which the father of accused as Secretary of village Welfare Society and the original transferor of land are at loggerheads :19: and fifth, that the relationship between the parties were not strained and even if strained, how there was a possibility of advancement of loan of Rs. 4 lacs.
The Hon'ble Supreme Court in the case titled C Antony Vs. K G Raghvan Nair 2002(4) RCR (CRI) 750 and Hon'ble Bombay High Court in Rajender Babu Naik Vs. C M Mathew I (2010) BC 383, have upheld the proposition that nonexamination of an important witness is fatal to the case of complainant. In the present case, the fatherinlaw and friend of complainant were material witnesses in the case of the complainant but non examination of any of them by complainant compels the Court to take adverse inference against him.
This is a settled proposition of criminal jurisprudence that prosecution has to prove beyond reasonable doubts and that it has to stand on its own legs and cannot take advantage of deficiencies of the case of defence. All the aforesaid points which complainant has failed to establish with any firmness turn his version into a fragile structure without his foundation. The disability of complainant to answer the above material deficiencies in his version coupled with defences of accused which raise substantial doubts to the standard of reasonable and prudent man prove fatal to his case and make the structure fall to ground.
:20:INGREDIENT NO.3 AND INGREDIENT NO. 4
28. The service of legal notice and the non payment thereupon is not is dispute. Therefore, both issues no. 3 and 4 stand decided in the favour of the complainant.
FINAL ORDER:
29. Although, the complainant has failed to prove his case beyond reasonable doubt and accused has raised doubts in the mind of Court regarding the truthfulness of the complainant's version but it is imperative to mention here that the Court while hearing the arguments and scrutinizing the record has observed that versions of both the parties were riddled with hidden facts and situation which probably were not even brought before the Court.
The present case appears to be an example of a prevailing social set up where the differences of caste, attitudes coupled with political rivalries, present or past, play a significant role in the unnecessary but continuous battle of social dominance virtually resembling an era of survival of a fittest.
Regardless, the Court is duty bound to adjudicate the claim, within strict periphery of law of land, and justice as its end. Therefore, in view of material on record, overall circumstances of case and the above reasoned discussion, it is the considered opinion of this Court that the accused has successfully rebutted the :21: presumptions of law raised against him on preponderance of probabilities and contrarily, the complainant has failed to discharge the onus shifted on him to prove the case beyond reasonable doubt and hence, the accused is acquitted.
Bail bond cancelled. Surety discharged.
File be consigned to record room.
Announced in the Open Court, today, the 31st March, 2011.
(ARVIND BANSAL) METROPOLITAN MAGISTRATE:3 (N I Act) PATIALA HOUSE COURTS, NEW DELHI.