Delhi District Court
Complainant vs Shri Kishan Phore on 19 August, 2023
Amresh Kumar Singh v. Shri Kishan Phore
IN THE COURT OF MS. CHHAVI BANSAL
LD. MM (NI ACT) DIGITAL COURT-03, SOUTH DISTRICT,
SAKET COURT, NEW DELHI.
Amresh Kumar Singh
S/o Sh. Moti Lal Singh
R/o C-27B Dayalbagh
Surajkund Faridabad
Haryana 121009
.... Complainant
VERSUS
Shri Kishan Phore
House No. WZ-157/1 Mandir Wali Gali,
Shadipur, Ranjit Nagar,
Delhi-120008
Mob-8586009281,8585955695
.... Accused
Complainant Case no. 5315/2021
CNR No. DLST020164792021
Title Amresh Kumar Singh v. Shri
Kishan Phore
Date of Filing of Complaint 22.10.2021
Date of Final Arguments 08.08.2023
Date of Pronouncement of 19.08.2023
Judgment
Offence Involved Under Section 138 NI Act
Plea of the Accused Pleaded not guilty
Final order Acquitted
CHHAVI Digitally signed by
CHHAVI BANSAL
BANSAL Date: 2023.08.21
09:52:18 +0530
CC No. 5315/2021 Page No. 1/18
Amresh Kumar Singh v. Shri Kishan Phore
JUDGMENT
1. The complainant has filed the present case under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") seeking prosecution of the accused regarding the alleged dishonour of the cheque in question issued in discharge of the legal liability of the accused.
2. The Brief Factual Matrix, as per the case of the complainant, is as follows:
2.1. That the Accused retired from the DTC in 2013 as a Ticket Collector and the complainant knew the accused for the last 10 to 12 years through the son of the accused who is running a cloth shop in Lado Sarai and had friendly terms with the accused and his son since the complainant used to visit the shop of the son of the accused frequently.
2.2. That complainant had lent money to the accused as well as to his son many times as they had close family/friendly relations.
2.3. That the accused was in need of financial assistance for personal requirement and thus he approached the complainant seeking a friendly loan of Rs. 5,00,000/-. While the complainant was not in a position to lend money to the accused at that time but, upon several requests made by the accused and on the basis of an assurance given by the accused that he would return the same to the complainant till March 2020, on May 2017, complainant gave a sum of Rs. 5,00,000/-
to the accused.
2.4. That to discharge of his legal liability, accused issued a cheque bearing no. 913347 dated 25.05.2021 for an amount of Rs. 5,00,000/- drawn on Syndicate Bank DTC Deport, Shadipur Branch, new Delhi Ex. CW-1/A. 2.5. That the said cheque was presented but the same returned dishonoured vide return memo dated 31.05.2021 for the reason 'Funds CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:52:24 +0530 CC No. 5315/2021 Page No. 2/18 Amresh Kumar Singh v. Shri Kishan Phore Insufficient' Ex CW-1/B. The said cheque was again presented but the same again returned dishonoured vide return memo dated 04.08.2021 for the reason 'Funds Insufficient' Ex CW-1/C. 2.6. That the complainant was constrained to issue Demand Notice dated 01.09.2021 Ex CW-1/D (colly.) but that the accused did not make payment of the cheque amount within the statutory period, compelling the complainant to file the present case.
3. After the complaint was filed, cognizance was taken and the accused entered appearance on 21.02.2022. On 26.04.2022, Notice u/s 251 of the Code of Criminal Procedure (hereinafter referred to as, "Cr.PC") was framed upon the accused to which accused pleaded not guilty and claimed trial. At the time of framing of notice, accused admitted that the cheque in question bore his signatures and that except signatures and filling amount in words he had not filled any of the particulars on the cheque in question. Accused also stated that he received the demand notice Ex CW- 1/D. The accused then stated the following in his defence:
"Ms. Babita wife of Sh. Atar Singh resident of H.No.57,Madangir Village, New Delhi had raised a committee of Rs.24 lacs and I was also the part of that committee and during auction I secured the committee for an amount of Rs.14 lacs and Ms. Babita told me that she will release Rs.14 lacs in my favour if I will give her five security cheques totaling to amount of Rs.24 lacs as security without date and the name of payee, so I gave her four cheques for an amount of Rs.5 lacs which I had mentioned Rs.5 lacs in words and the fifth cheque was for an amount of Rs.4 lacs and the number of the cheques were as follows "913344, 913345, 913346, 913347, and 913348"
I had given the abovementioned five cheques on 14.10.2015. the cheque mentioned in question No.2 is one of the above five Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:52:29 +0530 CC No. 5315/2021 Page No. 3/18 Amresh Kumar Singh v. Shri Kishan Phore cheques in the series. The committee ended in the year 2017 and I had paid the full committee regularly. Thereafter I repeatedly requested Ms. Babita to return my five security cheques however I kept requesting till 2019 but she did not return my security cheques and stated that she will not misuse the cheques however, in April/May, 2021 she mentioned the name of payee on the cheque and also the date and presented the same with the banker and she gave these five security cheques to her relatives. I had also given a written complaint on 09.01.2022 to the police of PS Ranjeet Nagar against Babita and four other persons who were given the cheques by Babita. Three of the abovementioned cheques are subject matter of the complaint pending before this court and rest of the two cheques have been withheld by Naveen s/o Babita. I do not know the complainant. Even, the complainant does not know my correct name and mobile number though they claimed that we are close friends. My name is not Shri Kishan Phore but Shri Krishan. The complainant does not even know my father's name. I am a retired person. There are three false cases filed against me for the three security cheques which are in one series. The Hon'ble court may kindly take an overall view in these cases."
4. As part of Complainant's Evidence, the complainant examined himself as CW-1. In his cross-examination, CW-1 stated that he was employed with Cortex Dental Implant but the company got closed and that CW-1 was not earning anything as on the date the cross-examination was recorded. CW-1 stated that he has known the accused for the last 10-12 years and that he knew the son of the accused Rajesh and volunteered to stated that Rajesh used to visit the house of CW-1. CW-1 stated that he had given Rs. 5,00,000/- in cash to the accused in several installments between 2017 to 2019 in the presence of the wife of CW-1 and the son of the accused. At a later stage during the cross-examination, CW-1 stated CHHAVI Digitally signed by CHHAVI BANSAL BANSAL 09:52:35 +0530 Date: 2023.08.21 CC No. 5315/2021 Page No. 4/18 Amresh Kumar Singh v. Shri Kishan Phore that he could not remember the name of the son of the accused. CW-1 stated that he did not have any receipt/agreement in regard to the said loan but CW-1 stated that he had been lending money to the accused even before 2017 of which CW-1 had no evidence. CW-1 stated that the accused told CW-1 that the accused would return the loan amount by March 2020. CW-1 stated that he had never visited the house of the accused. CW-1 stated that he did not know any person named Babita.CW- 1 stated that he did not remember the purpose for which the accused took loan since the same was a long time ago, and CW-1 also mentioned that the accused only visited his house to collect payment. CW-1 stated that the accused has never stayed at the house of CW-1 but that the son of the accused used to stay at the house of CW-1. CW-1 denied the suggestion that he filed a false case by misusing a cheque given to CW-1 by Ms. Babita.
5. Thereafter, the complainant closed his evidence and the matter was listed for recording of Statement of the Accused u/s 313 r/w 281 Cr.P.C. In the said statement, accused stated that he was a mechanic and not a ticket collector in DTC, that he has never had any financial transaction with the complainant. Accused further stated that the cheque in question is one of the five cheques in the series given to one committee organizer named Babita and that the said cheques were issued as security on account of certain committee transaction. Accused stated that he has no liability towards the complainant. Accused further stated that the complainant has misused the cheque in question since the complainant is a near associate of Ms. Babita. Vide same statement under Section 313 r/w 281 Cr.P.C., the accused opted to lead Defence Evidence.
Digitally signed by CHHAVICHHAVI BANSAL BANSAL Date:
2023.08.21 09:52:40 +0530 CC No. 5315/2021 Page No. 5/18 Amresh Kumar Singh v. Shri Kishan Phore
6. As part of Defence Evidence, accused examined himself as DW-1, and also examined DW-2 Om Prakash, DW-3 Sagar, DW-4 Babita and DW-5 Naveen Mahalwal.
1. In his examination in chief, accused as DW-1 stated that he retired from DTC as a mechanic in 2013, that DW-1 had given the said cheque to Babita regarding certain committee transaction - since Babita told DW-1 that she would release the committee amount in favour of DW-1 only if DW-1 would hand over five security cheques in sequence starting from cheque no. 913344 till 913348 for a total amount of Rs. 24,00,000/-. DW- 1 stated that the committee ended in 2017 and DW-1 had given full payment towards the committee to Babita and asked for the return of his security cheques, Babita told him that she would return the security cheques once she would find them but that DW-1 stopped demanding the cheques after 2019. DW-1 stated that Babita put the names on all the five security cheques in the following manner: the name of Amit Kumar Mahalwal on cheque no. 913344, the name of Bhuvan Joshi on cheque no. 913345, the name of Naveen Mahalwal on cheque no. 913346, the name of Amrish Kumar on cheque no. 913347, and the name of Amit Kumar Mahalwal on cheque no. 913348. DW-1 stated that he filed a police complaint with PS Ranjit Nagar against 5 people namely Amresh Kumar, Bhuwan Joshi, Naveen Kumar Mahalwal, Amit Kumar Mahalwal and Babita. DW-1 stated that his younger brother DW-2 OM Prakash accompanied him to the house of Babita when DW-1 gave the 5 cheques to Babita. DW-1 placed on record his passbook for the relevant period Ex. DW-1/1 (OSR), photocopy of the police complaint dated 09.01.2022 Mark DW-1/2, photocopy of passbook from 01.01.2021 to 16.03.2022 Ex. DW-1/3(colly), certain legal notices Ex. DW-1/4 (colly). and certified Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:52:46 +0530 CC No. 5315/2021 Page No. 6/18 Amresh Kumar Singh v. Shri Kishan Phore copies of the complaints CC NI Act 4764/2021 Ex. DW-1/5 and CC NI Act 4746/2021 Ex. DW-1/6.
7. In his cross-examination DW-1 stated that no document was executed in regard to the committee run by Babita and that the committee transactions were made in cash, that DW-1 received Rs. 13,5 lacs approx. from the committee in cash, that the said amount was used in repair work and was not mentioned in the ITR of DW-1, and that there was no written correspondence with Babita regarding the return of security cheques. DW- 1 accepted the suggestion that the police complaint Mark DW-1/2 was filed after the filing of the present complaint. DW-1 stated that he met Babita in 2017, 2018 and last in 2019, and that he met Babita around 4-5 times ever since the committee started. DW-1 was shown a photograph Mark DW-1/C and was asked to identify Babita, but DW-1 stated that he could not identify Babita from the photograph. DW-1 denied the suggestions that he never met Babita earlier and that his claim regarding handing over the cheque to Babita was a false and fabricated story. DW-1 stated that he has never spoken to Babita over phone. DW-1 was shown a record slip Ex.DW-1/C2 and DW-1 accepted the suggestion that the name of Babita was not mentioned in the record slip, but stated that the name of Babita was not mentioned since the cheques were given as security cheques to Babita for committee purpose. DW-1 denied the suggestion that the cheque was issued to the complainant and not to Babita. DW-1 denied the suggestion that he filed the police complaint Mark DW-1/2 only after receiving summons from court.
8. Thereafter, accused examined Om Prakash as DW-2. In his testimony, DW-2 stated that his brother the accused asked him to accompany him to Madangir village on 14.10.2015 for the purpose of collecting around Rs.
CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:52:54 +0530 CC No. 5315/2021 Page No. 7/18 Amresh Kumar Singh v. Shri Kishan Phore 13 lacs from Babita, that the accused gave four cheques of Rs. 5,00,000/- each and one cheque of Rs. 4,00,000/- to Babita, that the said cheques were blank baring the signatures of the accused and the amount written in words only, that the accused collected the committee amount in currency notes of Rs. 1000, and Rs. 500, that DW-2 also accompanied the accused while lodging the complaint in PS Ranjit Nagar on 8/9 January 2022. In his cross-examination, DW-2 stated that he did not have any knowledge about the number of committees in which the accused was involved or any details thereof, that DW-2 could not tell the cheque number of the cheques given by the accused to Ms. Babita. DW-2 denied the suggestion that the accused never gave the five cheques as described to Ms. Babita in the presence of DW-2.
9. Accused then examined the bank witness of his bank Mr. Saurabh Kumar (Assistant Manager, Canara Bank Shadipur Depot) as DW-3. DW-3 brought the bank account statement of the accused from 01.01.2021 till 02.03.2022, the bank account statement of the accused from 24.01.2015 till 21.03.2016, and the record of the cheque book issued to the accused containing cheques starting from number 290011913341 to 290011913350 Ex. DW-3/1(colly.). In his cross-examination DW-3 stated that it was not mandatory that the cheques of the cheque book issued in 2015 should be encashed in the same year only i.e. 2015, however, DW-3 volunteered to stated that the cheque books of Syndicate Bank were no longer valid w.e.f. 01.04.2020 in view of the merger of Syndicate Bank into Canara Bank.
10. The accused then examined Ms. Babita as DW-4. In her testimony, DW-
4 stated that she had heard the name of the accused but had never seen him personally, that DW-4 did not know what were the accused was doing, CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:52:59 +0530 CC No. 5315/2021 Page No. 8/18 Amresh Kumar Singh v. Shri Kishan Phore that DW-4 was a house wife and did not run any committee in 2015. DW- 4 denied the suggestions that the accused was participating in any committee with DW-4, that the accused had given five security cheques bearing numbers 913344,913345,913346,913347 and 913348 totaling to Rs. 24 lacs in 2015. DW-4 stated that she did not know if two cheques out of the aforesaid (i.e. cheques no. 913346 of Rs. 5,00,000/- and 913348 of Rs. 4,00,000/-) were with the son of DW-4 i.e. DW-5 Naveen Mahalwal. DW-4 denied the suggestion that she handed over the cheque Ex. CW-1/A to the complainant. DW-4 stated that she did not know any Amresh Kumar Singh and denied the suggestion that she gave the cheque bearing no. 913347 to Amresh Kumar Singh. In her cross-examination, DW-4 reiterated that she never organized any committee.
11. Accused finally examined Naveen Mahalwal as DW-5. DW-5 deposed to the effect that he was in possession of two cheques of Rs. 5,00,000/- and Rs. 4,00,000/- issued by the accused against the loan of Rs. 9,00,000/- which the accused took from DW-5. DW-5 stated that he did not remember the cheque numbers and DW-5 stated that he did not know the purpose for which the accused had taken loan from him. DW-5 stated that he was the son of DW-4 Babita and that Amit Kumar Mahalwal was his cousin. In his cross-examination, DW-5 stated that neither he nor his mother were involved in running committees, and that DW-5 knew the accused since his wife and the accused belonged to the same village.
12. In the Final Arguments advanced, both parties reiterated their central contentions. It was argued on behalf of the complainant that the accused had taken the loan from the complainant, that the accused misused the long standing good relations between the parties, that the essential elements of the offence u/s 138 NI Act stands fulfilled and that the accused CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:53:12 +0530 CC No. 5315/2021 Page No. 9/18 Amresh Kumar Singh v. Shri Kishan Phore has not been able to prove his defence that he has taken no loan but had rather given the cheques as security to one Ms. Babita in connection with certain committee. It was argued on behalf of the complainant that there were contradictions in the notice farmed u/s 251 Cr. PC and the rest of the evidence and that no documents were produced by the accused to support his defence.
13. The case of the complainant was strongly opposed by the accused; it was argued on behalf of the accused that the accused has given five blank signed cheques to Babita containing only the amount in words, that the complainant has filed a false case against the accused, that in the present case, the complainant did not even attempt any hearing except when he was cross-examined - indicating that the complainant is not even concerned about his case, that the complainant has not been able to prove his case on merits, that the complainant has concocted a story with Ms. Babita and the complainants in CC NI Act No. 4746/2021 and CC NI Act No. 5315/2021 with a view to harass the accused. It was also argued on behalf of the accused that the accused has proved his defence in view of the contradictions highlighted in the case of the complainant and also by examining witnesses on behalf of the accused. On the basis of the aforesaid, it was prayed that the accused be acquitted in this case.
14. Written arguments filed on behalf of both the parties. Submissions heard.
Record perused.
15. Section 138 of the NI Act reads as under:
138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.08.21 09:53:18 +0530 CC No. 5315/2021 Page No. 10/18 Amresh Kumar Singh v. Shri Kishan Phore any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
16. Moreover, Section 139 NI Act reads as under:
139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date:
2023.08.21 09:53:24 +0530 CC No. 5315/2021 Page No. 11/18 Amresh Kumar Singh v. Shri Kishan Phore received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
17. Thus, there are five essential ingredients which ought to be fulfilled to establish culpability for an offence u/s 138 NI Act:-
I. The cheque is drawn by a person on an account maintained by them for payment of money and the same is presented for payment within a period of three months from the date on which it is drawn or within the period of its validity;
II. The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
III. The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
IV. A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
V. The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
18. Section 139 thus raises a crucial presumption in favour of the complainant. In view of Section 139, the burden falls upon the accused to show that the cheque once admitted was not issued in discharge of any legally enforceable debt or liability. The contours of Section 139 NI Act have been established in a catena of judgments, and it is no more res integra that Section 139 NI Act casts a reverse onus upon the accused to show that the accused had no liability towards the complainant qua the cheque for which the CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:53:30 +0530 CC No. 5315/2021 Page No. 12/18 Amresh Kumar Singh v. Shri Kishan Phore complainant seeks to prosecute the accused, and that the presumption under Section 139 NI Act is essentially rebuttable in nature.
19. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court of India 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, as noted in State of Madras v. A. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ 232] it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had 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." (Ibid. at p. 65, para 14.) 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 showing the reasonable possibility of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but 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, Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.08.21 09:53:36 +0530 CC No. 5315/2021 Page No. 13/18 Amresh Kumar Singh v. Shri Kishan Phore "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"
[ Section 3, Evidence Act] .
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'." (emphasis supplied)
20. Thus, in view of the settled position of law as discussed above, the complainant has to establish its case by satisfying the ingredients of Section 138 NI Act, while the accused can dispute the main case of the complainant or discharge its burden by rebutting the presumption codified u/s 139 NI Act.
21. In the present case, the complainant claims the cheque amount from the accused on the basis of a loan which the complainant said that he advanced to the accused on account of the friendly relations between the parties. The accused has denied the case of the complainant and has sought to bring forth his own case that the accused did not take any financial help from the complainant, that the accused has never issued the cheque Ex. CW-1/A to the complainant, and that the cheque Ex. CW-1/A was rather given by the accused to one Babita in connection with a committee transaction.
22. The contrary position of facts taken by both the parties calls for examination of the case of the respective parties. As per the case of the CHHAVI Digitally signed by CHHAVI BANSAL BANSAL 09:53:42 +0530 Date: 2023.08.21 CC No. 5315/2021 Page No. 14/18 Amresh Kumar Singh v. Shri Kishan Phore complainant, the loan was given in cash to the accused. Admittedly, there are no documents which the complainant has produced which can show that the complainant lent any money to the accused. There are no witnesses to the loan which the complainant has stated that he advanced to the accused. In other words, there is no evidence to show that the complainant has lent the money to the accused in the first place. This fact gains additional weightage in light of the defence taken by the accused in the present case.
23. It has been stated in the complaint that the parties had developed such deep relations that the accused even stayed at the house of the complainant for several days. However, during the cross-examination of the complainant, the complainant stated that the accused has never stayed at his house but rather that it was the son of the accused who was the friend of the complainant and used to stay at the house of the complainant. A reading of the cross-examination further shows that the complainant did not even know the name of the son of the accused as the complainant stated 'I cannot recall at this stage the name of the son of the accused", the same son of the accused whom the complainant claims to be his friend. When the complainant was asked the name of the father of the accused, the complainant stated that he did not know the name of the father of the accused. Curiously, despite the claim of long-standing relations between the parties, the complainant did not even know that the accused was a mechanic and not a ticket-collector in DTC. All these facts appear unlikely in a situation where the parties claim that they have had friendly relations for 10-12 years.
24. Although the presumption u/s 139 NI Act operates against the accused, since the accused admitted to have signed the cheque in question at the CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:53:48 +0530 CC No. 5315/2021 Page No. 15/18 Amresh Kumar Singh v. Shri Kishan Phore stage of framing of notice u/s 251 Cr.P.C, the defence of the accused has been steadfast ever since the accused entered appearance and got the notice u/s 251 Cr.P.C. framed upon him. The defence of the accused has appeared through the suggestions put to the complainant and to the defence witnesses, as well as through the substantive defence of the accused mentioned in his plea u/s 251 Cr.P.C., the statement u/s 313 r/w 281 Cr.P.C. and the defence evidence. The case of the accused is that he did not take any financial help from the complainant, and that the accused issued five blank signed cheques (including the cheque in the present complaint Ex. CW-1/A) containing only the amount in words to one Babita (who was later examined as DW-4) in connection with a committee transaction. While DW-4 Babita denied running any committee with the accused, she did mention that she had heard the name of the accused. However, it was mentioned by DW-2 Om Prakash in his examination in chief that DW-2 accompanied the accused to the house of Babita for the purpose of collecting the committee amount and for handing over 5 blank signed cheques containing only the amount in words as security to Babita. Said fact remained unrebutted even in the cross-examination of DW-2.
25. It is pertinent to mention at this stage that the present complaint is one of the three complaints filed against the accused by three different complainants and is part of the three cases tried together: CC NI Act 4746/2021 Bhuvan Joshi v. Shri Kishan Phore, CC NI Act 4764/2021 Amit Kumar Mahalwal v. Shri Kishan Phore, and CC NI Act 5135/2021 Amresh Kumar Singh v. Shri Kishan Phore (i.e. the present case). The cheque numbers involved in the three complaints are 913345 Ex. CW- 1/A, 913344 and 913347 respectively, the cheques are dated Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.08.21 09:53:54 +0530 CC No. 5315/2021 Page No. 16/18 Amresh Kumar Singh v. Shri Kishan Phore 17.04.2021, 19.04.2021 and 25.05.2021, and all the cheques were drawn on Syndicate Bank, Shadipur Depot branch, New Delhi. All the three complaints have similar facts: that the complainant knew the accused through the son of the accused, that the accused approached each of the complainants for friendly loans which each of the complainants provided in cash without executing any documents and without taking any security/collateral, and that the accused issued a cheque against the loan liability. All the three complaints have been filed around the same time and by the same advocate. The complainant in this case is the nephew of Babita to whom the accused said that he gave five blank signed cheques bearing numbers 913344, 913345, 913346, 913347, and 913348.
26. Three out of the aforesaid cheques are subject matter of the prosecutions as mentioned above. It is the case of the accused that the two other cheques i.e. cheques bearing numbers 9113346 and 9113348 for Rs. 5,00,000/- and Rs. 4,00,000/- are still with Babita. This fact emerged during the trial in the testimony of DW-5 Naveen Mahalwal, who is the son of DW-4 Babita and who stated that he was in possession of two cheques of Rs. 5,00,000/- and Rs. 4,00,000/- given by the accused against the loan liability of Rs. 9,00,000/- on part of the accused towards Naveen Mahalwal. In his examination in chief, DW-5 refused to give the details of the loan amount and further stated that he did not know the purpose for which the accused borrowed money from DW-5. While DW-5 did not know the cheque numbers of the said two cheques issued by the accused to DW-5, DW-5 did corroborate the case of the accused to the extent of saying that the cheques that he had were for Rs. 5,00,000/- and Rs. 4,00,000/-. Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.08.21 09:54:00 +0530 CC No. 5315/2021 Page No. 17/18 Amresh Kumar Singh v. Shri Kishan Phore
27. Therefore, what emerges from the combined reading of all the evidence and documents placed on record is that the accused was facing prosecution u/s 138 NI Act in three complaints filed by three people who, as observed on the basis of the evidence brought forth, did not know the accused very well, who did not know the specific purpose for which the accused borrowed money, who lent money without executing any documents, who were issued cheques for repayment of the loan amount on different dates but the cheques belonged to the same sequence, and who approached the same counsel to file three identical cases against the accused. All this appears to be a highly improbable factual matrix and does not inspire the confidence of this court.
28. In view of the aforesaid discussion, this court holds the considered view that the complainant has not been able to prosecute the complaint successfully, and that the accused has been able to prove his defence at the threshold of preponderance of probabilities to the extent of creating a reasonable and probable doubt in the story of the complainant. Thus, Accused Shri Kishan Phore stands acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Announced in the open Court on 19.08.2023. Digitally signed by CHHAVI CHHAVI BANSAL Date:
BANSAL 2023.08.21 09:54:05 +0530 (Chhavi Bansal) MM (NI Act) Digital Court-03 (South) Saket Courts: New Delhi 19.08.2023 CC No. 5315/2021 Page No. 18/18