Delhi District Court
Page No. 1 To 8 Sanjeev vs . Narender Kaur on 15 February, 2013
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK1687/05
b. Date of the commission of the offence : 22/03/2005
c. Name of the complainant Sanjeev
d. Name of accused person and his parentage: Narender Kaur,
and residence W/o Late Sardar Bhupender Singh,
R/o H No. 129/10/Z, East
Guru Angad Nagar, Delhi92.
e. Offence complained of : Dishonoring of
cheque for funds insufficient.
f. Plea of the accused and his examination (if any): Not guilty
Because cheque in question
was given as security regarding
chit fund and no loan taken
from the complainant.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 29.01.2013.
i. Order pronounced on : 15.02.2013
Page No. 1 To 8 Sanjeev Vs. Narender Kaur
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Brief reasons for decision:
1.As per version of complainant accused has taken a loan of Rs. 65,000/ from him in September 2003 for her personal need and in discharge of aforesaid loan liability she had issued a cheque bearing number 826587 Ex. CW1/A, dt. 05.02.2005 for an amount of Rs. 45,000/ drawn on PNB, Krishna Nagar, Delhi (hereinafter referred to as cheque in question). It is also case of complainant that cheque in question had returned unpaid vide returning memo Ex. CW1/B dt. 21.02.2005 with remarks "Insufficient Funds". It is also stated by the complainant that accused did not pay cheque amount despite service of legal demand notice Ex. CW1/C dt. 06.03.2005 within stipulated time. Hence, aggrieved from the aforesaid conduct of accused, complainant filed the present complaint case u/s 138 of NI Act on 12.04.2005.
2. Notices of accusation u/s 251 Cr.P.C were served on accused persons on 06.03.2010 to which she pleaded not guilty and claim trial. Complainant (CW1) was subjected to extensive cross examination by counsel for accused on 23.09.2011 and 23.03.2012. Explanation of accused qua incriminating evidence u/s 313 Cr.P.C read with 281 Cr.P.C was also recorded on 15.10.2012. Accused did not want to lead defence evidence vide her statement dt. 15.12.2012. Both counsel for parties made oral argument at length on 29.01.2013 and counsel for complainant filed written argument on record.
Page No. 2 To 8 Sanjeev Vs. Narender Kaur 3
3. I have given thoughtful consideration to respective submissions of both counsels and made careful perusal of entire record of this case.
4. At very outset, it may be pertinent here to take notice of presumption u/s 118 read with 139 of NI Act qua genuineness of cheque and consideration thereto in favour of complainant. Accused has to rebut initial legal presumption u/s 118 and 139 of NI Act by leading evidence with balance of probability and same can be even rebutted by exposing inherent factual contradiction or legal infirmities in the story of complainant. It is also noticeable that once accused manages to probablies his defence by creating probable doubt over the enforceability of consideration in question or its existence, it is up to the complainant to prove his case beyond all reasonable doubts. It is further noticeable that complainant can not be allowed to prove his case by taking benefit of any lacuna in the defence of accused because his case has to stands judicial scrutiny on its own legs. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pharelal, (1993) 3 SCC 35 (Para.12) it has been held as herein below: "Upon consideration of various judgment as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is Page No. 3 To 8 Sanjeev Vs. Narender Kaur 4 supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
Page No. 4 To 8 Sanjeev Vs. Narender Kaur 5 The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances, of the case, act upon the plea that it did not exist."
5. Adverting to the facts of this case accused admitted cheque in question bearing her signature and her bank account number. However, accused pleaded that she handed over blank signed cheque in question to the complainant regarding chit fund business run by the complainant as security cheque. Accused also pleaded that she had repaid chit fund of Rs. 1,00,000/ to the complainant and complainant did not return cheque in question on various pretext. Accused also denied taking of any personal loan from the complainant. (See the statement of accused u/s 313 Cr.P.C).
6. During cross examination complainant (CW1) stated that he was MD of SRD Chit Fund Ltd. and no resolution of board of director of chit fund company Page No. 5 To 8 Sanjeev Vs. Narender Kaur 6 was passed before issuance of legal demand notice or authorizing him to file the present complaint case. CW1 (complainant) further admitted during his cross examination that SRD Chit Fund Ltd. was in operation till 2009 and present complaint case has been filed on 16.04.2005. Complainant (CW1) also admitted that accused was member of Chit fund of which 25 were total member for sum of Rs. 1,00,000/ and accused had paid about 16 installments of chit fund. Complainant further stated during cross examination that accused had not paid chit fund thereafter.
7. From the testimony of complainant in his cross examination it is clear that accused was member of some chit fund run by complainant and she had repaid at least 16 installments of chit fund. It is also clear from the testimony of complainant that there were three directors of SRD Chit fund Pvt. Ltd. and no resolution of director has been filed by the complainant for launching present criminal complaint case on behalf of chit fund. Here, ld. Counsel for accused contends that complainant namely Sanjeet could not have filed present complaint case in his own name or just in capacity of individual director or MD of SRD Chit fund without any supported resolution of board of director. Court is aware of observation of Hon'ble Supreme Court of India made in M. M. T. C Ltd & Medchl Chemicals & Pharma (P) Ltd. & Anr. 2002 ALLMR (Cri) 230 (S.C) and Dale and Carrington Invt. (P) Ltd. Vs. P. K. Prathapan and Ors. Dt. 13.09.2004.
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8. Whereas, Ld. counsel for complainant contends that instant loan has not concerned with SRD Chit Fund and same is personal loan taken by the accused from the complainant separately when complainant was director of SRD Chit Fund. On the other hand, complainant (CW1) during his cross examination stated that it is wrong to suggest that he did not advance any loan by way of chit fund to the accused. Accordingly, I find no force in the submissions of counsel for accused as to instant loan has no connection with SRD Chit Fund. Moreover, Ld. Counsel for accused also contends that no ITR had been filed by the complainant showing advancement of personal loan in question to the accused.
9. Complainant did not explain satisfactorily as to why had accepted cheque in question for a sum of Rs. 45,000/ when he had advanced loan of Rs. 65,000/. He also failed in explaining as to why he did not insist any other security document being secured from the accused regarding remaining amount. It is also noticeable that complainant did not disclose the nature of personal need on part of accused at the time of alleged advancement of loan in question and time / date of loan in question. Aforesaid conduct of complainant does not confirm expected behavior of a reasonable person of average prudence in given situation. It is further noticeable that counsel for accused suggested during cross examination of complainant that some criminal complaint case has been filed by the accused against the complainant and his chit fund company and complainant admitted that his statement has been recorded by police official of PS Preet Page No. 7 To 8 Sanjeev Vs. Narender Kaur 8 Vihar.
10. In view of above discussions, the court is of considered view that accused managed to probabilise her defence with balance of probabilities and accused exposed inherent contradiction in story of complainant without jumping into the witness box. It is also clear that complainant failed to prove his case beyond all reasonable doubts thereafter. The court is also mindful of basic tenant of criminal jurisprudence as to benefit of doubt must go in favour of accused and in case of two possible version, the version favouring the innocence of accused should be opted by the court.
11. In upshot of aforesaid discussion, I have no hesitation in ordering acquittal of accused persons for offence u/s 138 of NI Act in this case.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
th
ON 15 Day of February, 2013 MM, NI Act, (East)
KKD Courts, Delhi.
Page No. 8 To 8 Sanjeev Vs. Narender Kaur