Delhi District Court
Vinod Kumar vs Satpal on 16 August, 2018
IN THE COURT OF MS. PARIDHI GUPTA
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
New CC No. : 4993317/2016
Vinod Kumar versus Satpal
Under Section: 138, The Negotiable Instruments Act, 1881
1. Name & address of the complainant : Vinod Kumar,
S/o Sh. Ram Kumar,
R/o H.No. RZ126, XBlock,
New Rosshan Pura, Najafgarh,
New Delhi 110043.
2. Name and address of the accused : Satpal,
S/o Sh. Hari Chand Nagar,
R/o HNo. C46B, Vikas,
Vihar, Kakrola,
New Delhi110078.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final order : Acquitted.
6. Date of such order : 16.08.2018
7. Date of Institution of case : 22.04.2015
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
8. Date of decision of the case : 16.08.2018
JUDGEMENT
1. Vide this judgement, this court shall dispose of the aforementioned complaint case filed by the complainant, Vinod Kumar (hereinafter referred to as the 'complainant') against accused, Satpal (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case, bereft of unnecessary details, is that the accused approached the complainant in the month of November 2014 for advancement of a friendly loan of Rs. 2,00,000/. The accused promised to repay the same after two months from the date when he borrowed the loan. After relentless demands, the complainant advanced a loan of Rs 2,00,000/ to the accused. The two agreed that the loan in question shall be returned by January, 2015.
3. To discharge the liability, the accused tendered one cheque amounting to Rs. 2,00,000/ bearing number 503578 dated 10.02.2015 drawn on HDFC Bank, Gole Market, New Delhi (hereinafter referred to as the 'cheque in question') in favour of the complainant with the assurance that the same will be honoured. Upon presentation whereof, however, the same got dishonoured and was returned to the complainant vide return memo dated 17.02.2015 with the remarks "Account Closed". The complainant thereafter, sent a legal demand notice dated 07.03.2015 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof. The complainant has claimed that the said legal notice was duly served at the correct address of the accused through speed post.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
4. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 22.04.2015.
5. The complainant has averred that the complaint is within the period of limitation as is prescribed under section 138 read with section 142 of The Negotiable Instruments Act, 1881 and the same falls within the territorial limits of this Court; thus, being tenable at law.
6. Prayed for: As relief, the complainant has sought that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881.
7. Presummoning evidence: To prove his case prima facie, the complainant led the presummoning evidence under section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/A wherein, the complainant avouched the same facts as are averred in the complaint.
8. Documentary evidence: To pillar and reinforce the above claims, the complainant has filed the copies of the pass book of one Ramesh which are Ex. CW 1/1 (colly). The cheque in question is Ex. CW1/2 while the cheque return memo in respect of the cheque in question is Ex. CW1/3. The legal demand notice sent to the accused by the complainant is Ex. CW1/4 and the postal receipt qua the same is Ex. CW1/5 while the internet generated tracking report is Ex. CW1/6.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
9. Summoning of accused persons and chain of subsequent events:
The learned predecessor court was pleased to summon the accused after hearing the arguments at the stage of presummoning vide order dated 25.10.2016 and accused entered appearance in the present case on 05.12.2016. The accused was admitted to bail vide the same order.
10. Notice under section 251 Cr.P.C. was framed against the accused pursuant to arguments being advanced on the point of consideration thereof by the court on 13.02.2017. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
11. Plea of the accused: The accused pleaded not guilty and claimed trial. He stated in his defence that the impugned cheque was given as a security to one Surender Yadav who is the employer of the complainant. The same has been misused by the complainant. The accused denied his liability in respect thereto and towards the complainant. However, he admitted being acquainted with him and that the impugned cheque bears his signature. He denied filling the particulars therein and the fact that he received the legal demand notice.
12. Evidence of the complainant: To prove his case, the complainant adopted his presummoning evidence as his postsummoning evidence and got himself examined as CW1. He was subjected to crossexamination wherein he inter alia deposed that he is engaged in the business of spare parts and runs a shop. The New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 complainant avouched that he is an income tax assessee and files ITR. He further testified that he had given another loan of Rs. 10,000/ to one of his friends namely, Vinay Yadav 1015 days ago The complainant further stated that he had advanced a loan of Rs. 2,00,000/ to the accused in cash and that he had advanced the same in the month of November, 2014; however, he did not remember the exact date. He stated that he had advanced the loan to the accused at the shop of one of his friends, namely, Surender but had had not advanced the same against any guarantee. The complainant voluntarily clarified that the loan was a friendly one.
13. The complainant further avowed that the factum of loan advanced was not reduced into any agreement in writing. He stated that he had the requisite amount of Rs. 2,00,000/ in cash for the purpose of advancing to the accused. The witness deposed that he did not know whether the factum of loan advanced to the accused and the amount thereof is reflected in his ITR for the assessment year 2014 to 2016 or not. He voluntarily asserted that his CA must be aware of the same.
14. The complainant avouched that he does not run his shop under any firm or company's name. He stated that the accused approached him for the purpose of advancement of loan 1015 days prior to the date when he had given the same to the accused. The witness asseverated that he has advanced loans to the accused 02 03 times before and that he had given him such loan in cash. The complainant added that the accused repaid the previous loans to him in cash. He deposed that he never used to take security cheques as guarantee for the purpose of loans advanced.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
15. The complainant testified that accused handed over the cheque in question to him on 10.02.2015 and that the said cheque was handed over to him at the shop of the abovementioned friend, Surender in the evening at about 7:00 pm to 8:00 pm. As an answer to the court question, the complainant affirmatively stated that Surender was present at the time when he accepted the cheque in question from the accused.
16. The witness asserted that the cheque in question was given to him by the accused with the particulars having duly filled therein. The complainant added that the same was already filled. He testified that the accused had given the cheque in question two dates prior to 10.02.2015 and the same was a PDC cheque whereon the date mentioned was 10.02.2015. He assevearted that he had not given any receipt to the accused pursuant to accepting the cheque qua the repayment of loan. The complainant deposed that the accused repaid the previous loans to him in a lump sum amount and not in installments. The complainant further asserted that Surender Yadav, has a poultry farm and affirmed that the accused used to purchase Chicken from Surender Yadav.
17. Upon being recalled for crossexamination, the complainant, at the outset, filed his ITRs of the assessment year 20132016. The complainant submitted that the originals thereof have been misplaced. The complainant avouched that he does not know whether the loan transaction in question is reflected in his ITR and balance sheet or not. He stated that he had got issued a sales tax and VAT Number in the name of his firm.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
18. Testimony of CW2, Sh. Surender: In his examinationinchief, the witness asserted that he has known both the complainant and the accused. He avouched that he used to deliver goods to the accused while he has friendly relations with the complainant. He lastly deposed that the accused had tendered the cheque in question to the complainant in his presence and that the same was amounting to Rs. 2,00,000/.
19. The witness was subjected to crossexamination wherein he inter alia testified that he has known the accused for the last six years. He stated that he used to supply chicken to the accused and that the accused used to take goods even on credit and further that he sometime used to pay in cash. The witness further deposed that he transacted with the accused for a period of 1½ to 2 years and that he used to supply goods to the accused on credit as per his requirements. CW2 avowed that the accused used to pay him in cash only and that he had maintained the accounts qua the transactions with the accused. The witness added that the accused owes some balance amount towards him however, he could not tell the exact amount. He stated that he had never sent any demand notice to the accused for the same.
20. CW2 further deposed that he has known the complainant since 1998 and that the complainant runs a transport business and has some shops on Khera road, Najafgarh. He affirmed that the accused knows the complainant through him. He voluntarily asseverated that the complainant used to sometimes accompany him at the time when he used to visit the accused for supplying chicken or collect the payment therefor.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
21. He testified that he has a truck, Mahindra pickup which is owned by his brother. The witness stated that he did not remember the exact date when he last supplied chicken to the accused. He added that he supplied chicken to the accused even after the date when the accused tendered the cheque in question to the complainant and that the said cheque was issued in favour of the complainant but he could not tell the date mentioned thereon. The witness further asserted that he cannot tell the exact date on which the said cheque was tendered. The said witness further avouched that he did not remember as to who called the accused for tendering the same.
22. He avowed that the complainant and the accused had visited his shop almost at the same time sometime in the evening and that customers were present at that time. He further deposed that the complainant had demanded and had informed the accused that the accused owed the former a sum of Rs 2,00,000/ and that the complainant had not given Rs. 2,00,000/ to the accused at his instance or upon his guarantee. He added that the complainant had given the said amount to the accused in cash in his shop and in his presence. He stated that he had not counted the amount so given and that he cannot tell the denomination in which the said amount was given. The witness asserted that he cannot tell the exact date when Rs. 2,00,000/ was given by the complainant to the accused.
23. CW2 affirmed that he did not take any receipt from the accused when the complainant granted the loan of Rs. 2,00,000/ to the accused as it was not his New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 prerogative. He stated that he has also witnessed other transactions between the complainant and the accused. Lastly, he admitted that he was informed about the present case by the counsel for the complainant.
24. The complainant closed his evidence on 04.07.2017 without calling and examining any further witness.
25. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C on 31.08.2017 wherein he inter alia stated that he used to buy chicken from Surender Yadav and hence, issued cheque in question in his favour. The same was a blank and signed one. The cheque in question, along with other cheques was given at the shop of Surender. He stated that he did not know as to how the complainant procured the same. He alleged misuse thereof and denied his liability in respect thereto. He also denied receiving the legal demand notice and also the fact that he approached the complainant for advancement of a friendly loan and the same was granted by the complainant. Lastly, the accused admitted his signature on the impugned cheque but denied filling the particulars therein.
26. Defence Evidence: The accused got himself examined as a witness u/s 315 Cr.P.C and inter alia deposed in his examinationinchief that he never engaged in any financial transaction with the complainant and that he has known the complainant as the complainant used to deliver chicken to his shop which was supplied by one Surender Yadav. The accused avouched that he had given three blank signed cheques for the purpose of security to Surender Yadav and that one of the New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 cheques is the cheque in question. He added that prior to this as well, he used to give security cheques to Surender Yadav which the latter used to return to him after payment for the chicken supplied. Lastly, the accused denied his liability towards the complainant in respect of the impugned cheque.
27. The accused was subjected to crossexamination wherein he inter alia testified that he has been carrying on his business for the last 10 to 12 years. He avowed that his account with the HDFC bank was opened in the year 2000 and that he closed the same in the year 2012 or 2013. He added that he does not visit the bank branch but that he used to visit the branch in Sector5, Dwarka each time he had to deposit or encash a cheque. He stated that did not remember whether he used to receive SMS from the bank regarding any transaction or not.
28. The accused deposed that he never got to know about the factum of dishonour of the cheque in question and only received the summons from the Court. He avouched that he never sent any notice to Surender Yadav after receiving summons from the Court and that he did not file any police complaint or any other case against Surender Yadav for return of the cheques. The accused lastly, asseverated that he maintains his bank account with SBI Bank, Sector13, Dwarka and that he stopped operating the account with the HDFC bank and hence, closed the same.
29. Testimony of DW2, Sh. Dharmender: In his examinationinchief, the witness deposed that he runs a meat shop along with his brother and that they engaged in a transaction with Surender Kumar in the year 2013. He further stated that Surender Kumar used to supply chicken to them. He avouched that his brother New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 namely, Satpal i.e. accused herein, had given three blank signed cheques to Surender Kumar in the year 2013 in his presence and that the said cheques were given for the purpose of security. He deposed that in the year 2014, Surender Kumar had approached them at the shop and they had given a cheque amounting to Rs. 50,000/ to him, whereafter, they had paid a sum of Rs. 50,000/ to Surender in cash after about 1 to 1 ½ months and took the abovementioned cheque back from him.
30. The witness avowed that the complainant used to work for Surender Kumar and used to supply chicken on behalf of Surender Kumar at his shop. He testified that, to the best of his knowledge, the accused did not take a sum of Rs. 2,00,000/ from the complainant and hence, owes no liability towards him. He clarified that the cheque in question is one of the security cheques given to Surender Kumar and not to the complainant. He lastly asserted that he or his brother i.e. the accused have no concern with the complainant and that he has also worked for Surender Kumar for about 23 months.
31. During his crossexamiantion, the witness inter alia testified that he is presently working with his brotherinlaw namely, Ganesh Kumar at his shop. He stated that he has been working thereat since the last 4 months and that prior thereto, he was working with the accused at their shop. He stated that he used to work with the accused without entering into any partnership with him and that he was working with him for about 10 years.
32. The witness admitted that Surender Kumar and Surender Yadav are one and the same persons. He avouched that he did not remember the date when he started New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 working for Surender Yadav @ Surender Kumar and the date when he left the job. He added that he perhaps worked with him in the year 2014.
33. DW2 avowed that he did not remember the account number on which the cheques given by the accused to Surender Yadav were drawn. He voluntarily clarified that the same were drawn on HDFC Bank. He asseverated that he does not maintain any account with the HDFC Bank. He further testified that the cheque amounting to Rs. 50,000/ was not one of the cheques which were given as security and that the same was given subsequent to the three security cheques. He stated that the accused did not demand the return of the security cheques from Surender Yadav in his presence at the time when the cheque amounting to Rs. 50,000/ was returned. He deposed that he did not remember whether he worked for Surender Yadav prior to November 2014 or not.
34. Testimony of DW3, Smt. Mukesh: The witness in her examination inchief deposed that her shop is situated in Kakrola village and bears number A54. She stated that she runs a meat shop. The witness avouched that she has known the accused for the last fifteen to sixteen years and that his chicken shop is situated right opposite to her shop. She further stated that she is acquainted with Surender Yadav and that he used to supply chicken to the accused. She deposed that he used to supply the same in a vehicle namely, Mahindra pickup and that the said car used to be driven by the complainant. She clarified that she is acquainted with the complainant and identified him in court.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
35. The witness avowed that around five years ago, she witnessed a scuffle and verbal arguments between the complainant and the accused at the shop of the accused and that Surender Yadav was also present at that time. She added that upon her inquiry from the accused, he informed her, in the presence of the complainant and Surender Yadav, that he owes a liability of Rs. 50,000/ towards the complainant and sought some time to repay the same. She stated that she took guarantee for the accused and that the accused repaid the entire amount of Rs. 50,000/ in her presence to the complainant around the festival of holi. She lastly, stated that when the scuffle took place between the parties, the accused had given one cheque in her presence as security to Surender Yadav and that the said cheque was a blank signed one.
36. During her crossexamination, she testified that she has come to the court today at the instance of the accused and that this was the second time when she had come to the court at the instance of the accused. She avouched that she is deposing as she witnessed the transactions mentioned above.
37. DW3 stated that she has known the complainant for the last six to seven years and that his name is Vinod Yadav. She asseverated that she has known the complainant as he used to deliver chicken at the shop of the accused. The witness testified that she did not remember the number of the vehicle, Mahindra pickup. She voluntarily clarified that the same was of white colour. She lastly, deposed that the cheque was given to Vinod Yadav and Surender Yadav and that the cheque given by the accused was undated.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
38. Without examining any further witness, the accused closed his evidence on 11.07.2018.
39. Final Arguments: Final arguments were advanced on behalf of both the rival parties. Learned counsel for the complainant, Mr. Vinod Sehrawat, argued that accused has admitted his signatures on the impugned cheque. Learned counsel contended that the CW2 is the eye witness to the transaction and that his testimony is unimpeached. Learned counsel relied on the ITR filed by the complainant to support his averments. He pointed out the inconsistency in the version of the accused and the defence witnesses. Since, no misuse has been proved by the accused, learned counsel for the complainant submitted that the complainant has successfully proved his case beyond reasonable doubt and hence, the accused is liable to be convicted.
40. Per contra, learned counsel for the accused, Mr. Mukul Gupta, argued that there is no existence of legal liability against the accused and that the cheque in question was given merely as a security to Surender Yadav which has been duly proved by the accused. Learned counsel alleged that the said cheque has been misused by the complainant as the particulars therein have been filled in different ink when compared with the ink in which the same has been signed. Learned counsel stated that calling and examining Surender is an afterthought and hence, his testimony is suspicious. Thus, Learned counsel submitted that since the complaint is a false and fabricated one, the accused is entitled to be acquitted of the offence complained of.
41. I have heard learned counsel; pursued the material on record and considered the submissions advanced.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
42. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
43. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of the said New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
44. It becomes imperative to mention section 139 of The Negotiable Instruments Act, 1881 which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
45. That said, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given.
46. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that 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 the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
47. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
48. First and foremost, for any prosecution case to stand on its own legs, it must pass through the stringent test of compelling cogency, plausibility and lucidity. The entire premise of a complaint under section 138 is the cheque in question. It must New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 be borne into mind that the issuance of the cheque and the execution thereof are two different aspects. While the court can presume that the cheque may have been in the possession of the complainant, it shall not compel the court to presume that the same was in fact executed. The prosecution has to establish the fact that the cheque was drawn by the accused. Mere possession thereof or an admission of signatures thereon shall not liberate the complainant from his onus to prove that the accused had drawn a cheque in his favour.
49. That said, now let me examine the presumptive force and the rebuttal potency of the presumption carved out under section 139 read with section 118 of The Negotiable Instruments Act, 1881 in light of the facts of the present case. Though the reverse onus of proof lies on the accused to challenge the presumption, the Act nowhere spells out the defences which could be taken to beseech the same. The semblance and persuasiveness of rebuttal evidence depends on the facts and circumstances of each case.
50. The first condition under section 138 NI Act is two folds; one being that the person must have drawn a cheque on an account maintained by him and the other being that the same must have been drawn to discharge a legally enforceable debt or other liability. As for the first, there is no dispute about the fact that the accused does maintain his account with HDFC Bank and the cheque in question Ex. CW1/2 was drawn on the account maintained by the accused. The parties have been in consensus as regards the above aspect.
51. Now coming to the second aspect of the first condition, the accused has New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 claimed that the cheque in question was not issued in favour of the complainant and that the same was given to the employer of the accused namely, Surender as a security. To fortify the said assertion, accused examined two witnesses.
52. The accused has taken a consistent defence through and through and has vehemently denied at every stage of the proceedings that he never issued the impugned cheque in favour of the complainant. Apart from the fact that the accused did not lodge any complaint against the complainant for alleged misuse of his cheque, nothing material has been elicited from him during his crossexamination. However, such omission per se shall not fortify the prosecution case with brick and mortar of credulity. Thus, it is now, incumbent to examine the avowal of the complainant.
53. The complainant has alleged in his complaint that owing to having friendly relations with the accused, he granted a loan of Rs. 2,00,000// to him when the latter approached him for financial aid. The complainant has not mentioned the date when the accused approached him and when he advanced the loan to him. Likewise, the date when the accused issued the impugned cheque in favour of the complainant is also amiss therefrom. The omission to state the said dates in his complaint, legal notice or his evidence filed by way of an affidavit is a material one and causes dubiety to lurk around the version of the prosecution.
54. Furthermore, the complainant stated during his crossexamination that the cheque in question was given to him by the accused on 10.02.2015. The complainant's sudden revelation, at the stage of his crossexamination, distressingly clouds the story of the complainant with a dense fog of murkiness as the same New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 reasonably appears to be an afterthought. Reasonability propels a prudent man to ponder over the question as to how the complainant procured the impugned cheque and whether the same was conclusively and unquestionably issued and executed in his favour by the accused.
55. Admittedly, no document was executed between the parties in respect of the transaction in question. Also, no receipt was taken by the complainant when he allegedly advanced the loan in question to the accused. Prudence dictates that one would adopt a rather cautionary approach and be forethoughtful in advancing loan to another. The complainant has neither disclosed his source of income nor has disclosed any factum qua the repaying capacity of the accused.
56. The complainant, in the present case, has failed to assure the court at any stage that he was either misled into believing that the accused shall repay or will be able to repay the alleged loan advanced or that he had put in reasonable efforts to ascertain the financial potentiality of the accused. It is highly improbable to not know about such cursory details as regards the financial capacity of the accused, with whom the complainant claims to have friendly relations. This could propel any reasonable thinker to ponder as to how 'friendly' the relations were between the parties so as to advance such considerable sum of money, if at all.
57. It is additionally unsettling, in view of the fact that other attending circumstances do not favour the complainant as much as they favour the accused, that at the time of granting the loan, the complainant did nothing to secure the payment nor did he execute any promissory note or other like document. Matters involving New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 money demand vigilance and discreetness. The complainant has failed to exercise either of the two. The prosecution story loses immense credibility when gauged from the standpoint of a reasonable man.
58. Interestingly, the complainant avouched that he arranged the loan amount from one Ramesh Kumar and thereafter, advanced the same to the accused. This fact further renders the prosecution story bizarre and suspicious. It fails to reconcile with reason and logic that the complainant granted an interestfree loan to the accused after shouldering himself with a debt taken from a third person. It is highly inconceivable that a person would be charitable enough to borrow a loan from another to advance it without any consideration to the accused. Also, the complainant contradictorily stated during his crossexamination that he had the requisite ash to advance to the accused. If he had the requisite cash, why did he borrow loan from a third person? The lack of any plausible explanation in this regard further dominates suspicion hovering over the story of the complainant.
59. Further, the complainant did not examine his creditor, Ramesh to substantiate his story. Inexplicably, the said witness is amiss from the list of witnesses and the complainant made absolutely no efforts to call and examine him during the course of trial. He has merely filed the copy of the pass book of Ramesh without calling him as a witness. Mere filing of the same shall not prove the otherwise feeble case put forth by the complainant. Since there is no reference date as to when the accused approached and the complainant advanced the alleged loan, the pass book entries become irrelevant to prove the prosecution story.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
60. Another fact that ebonises and smudges the complainant's version with a smog of doubt is that while the complainant advanced the entire loan amount in cash without taking any receipt from the accused, he admittedly, accepted a post dated cheque from the latter. The version narrated by the complainant resonates the fact that the complainant did not evaluate any risk factor involved in lending money, if ever he did, more so in the wake of the fact that he himself became liable to pay a debt to Ramesh from whom he allegedly borrowed the loan amount.
61. Lastly, perusal of the cheque in question, Ex. CW1/2 reveals that the particulars therein and the signatures thereon are in different ink. Although the presumption under section 20 NI Act lies in favour of the complainant yet if the attending circumstances point towards misuse, the presumption stands rebutted. The provision under section 73 of The Indian Evidence Act, 1872 comes into play in this regard which is reproduced as under:
Section 73. Comparison of signature, writing or seal with others admitted or proved.--In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
62. A bare perusal of the impugned cheque and the signatures of the complainant on record reveal that the particulars therein have been written in his handwriting and not that of the accused. Had the complainant proved unimpeachably that the accused indeed executed the negotiable instrument in question in his favour, the presumption under section 20 NI Act would have been fortified granting him the authority as a holder of the same to fill the particulars and present the said cheque. However, since the complainant has failed to prove the former fact unquestionably, The presumption is rendered sterile and redundant.
63. As far as the testimony of CW2 is concerned, calling and examining the said witness, in an attempt to corroborate the story, also seems to be an afterthought. The complainant has claimed that the accused issued the impugned cheque in his favour in the presence of CW2, Surender. The omission to state the said fact in his complaint disquietingly colours the prosecution version with concoction and falsehood. The said witness was also never named in the list of witnesses filed along with the complaint. This fact obscures the bona fides of the complainant. The examinationinchief of CW2 did not reveal any material and collateral facts which were put forth by the complainant during his deposition. The said witness neither added and corroborated as to where the impugned cheque was given nor did he mention as to when the same was tendered by the accused. His failure to spell material facts before the court coupled with his appearance as a witness at a belated stage, brims his testimony with unreliability.
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27
64. Learned counsel has relied on the ITR filed by the complainant to support his contentions. The said ITR is not reliable for two reasons viz, firstly, the same are photocopies and hence, are inadmissible in evidence by virtue of section 64 of the Indian Evidence Act, 1872. and secondly, the said ITR does not reflect that the complainant advanced loan to the accused which amounted to Rs. 2,00,000/. A vague head such as "Sundry debts" shall not cause any prudent person to infer that the said head included the alleged loan advanced to the accused. Thus, the argument is invalidated.
65. The cornerstone of liability which entails under section 138 NI Act is the issuance of a cheque by the drawer in favour of the drawee. In the present case, however, the complainant has failed to show if the accused did actually issue the impugned cheque in his favour. At the cost of repetition, the complainant must unimeachably prove that not only did he possess the cheque by virtue of it being given by the accused but also that the accused duly executed the negotiable instrument in question in his favour. Mere possession of the cheque shall not indict the accused with criminality, at least not beyond all reasonable doubt.
66. Unlike the prosecution, the accused merely has to prove his defence on probabilities. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial where which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex Court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 wherein it been held that:
New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 "....The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
67. The accused, in the present case, has caused the probabilities to lie in his favour and thus, the prosecution case has succumbed to the weight of the cumbersome onus which the complainant has failed to discharge.
68. A presumption is rendered unprolific and barren if the entire edifice of the prosecution case, it is to favour, collapses under its own weight of fatal infirmities inherent therein. In this regard, reliance can be placed on a judgment pronounced by a three judges' bench of Hon'ble Supreme Court in Trilok Chand Jain v. State of Delhi 1976 SCR (1) 348, wherein it was held that:
"......the presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If 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"
69. Now, the main contention of learned counsel for the complainant is that New CC No. : 4993317/2016 Vinod Kumar versus Satpal 27/27 the accused and his witnesses have put forth inconsistent versions. The said argument does not carry much force as the accused has otherwise rebutted the presumption under section 139 NI Act. Stray and immaterial contradictions in the testimony of the accused and his witnesses having not much bearing on merits shall not favour the complainant to cement his story. The version put forth by the complainant must stand on its own pillars which in the present case, has not been concretely structured.
70. In light of the aforestated reasons, the presumptions in favour of the complainant under section 139 read with section 118 NI Act stand rebutted and the complainant has failed to prove the existence of a legally enforceable debt and that the impugned cheque was genuinely issued by the accused in his favour towards the discharge of a liability in respect of the loan in question. The complainant has failed to adduce evidence of compelling and unimpeachable character to impute criminality on the accused. The benefit of doubt goes to him. The record cries out loud of the fact that the preponderance of probabilities lies in favour of the accused.
71. Ratio: Accordingly, the accused, Satpal, is not found guilty of the offence under section 138 of the Act. The accused is accordingly, acquitted of the offence complained of..
. Digitally signed
Announced in the open court
PARIDHI by PARIDHI
GUPTA
today i.e. 16.08.2018
GUPTA
Date: 2018.08.21
16:08:33 +0530
Paridhi Gupta
MM/N.I.Act02/South West
Dwarka, Delhi
New CC No. : 4993317/2016
Vinod Kumar versus Satpal 27/27