Delhi District Court
Baleshwar Parshad vs . on 13 July, 2012
Baleshwar Parshad v. Kailash Prasad
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Baleshwar Parshad
S/o Sh.Radhey Shyam,
R/o RZ-105B, Shiv Nagar,
New Roshanpura, Najafgarh,
New Delhi. . . . Complainant
Vs.
Kailash Prasad
S/o Sh.Muneshwar Parshad,
R/o A-495, Jawalapuri-IV,
Nangloi, Delhi-41. . . . Accused
CC NO. : 896/10
OFFENCE COMPLAINED OF : U/s 138 of Negotiable Instruments Act
PLEA OF ACCUSED : Not guilty
DATE OF INSTITUTION : 25.06.2002.
DATE OF RESERVING ORDER : 13.07.2012.
FINAL ORDER : 04.08.2012.
DATE OF ORDER : Acquitted.
Present: Complainant in person.
Sh.V.K. Sharma, Counsel for the accused alongwith accused in person.
JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/s 138 of Negotiable Instruments Act. The brief facts of the case are as follows: -
1. That the accused is one of the relatives of the complainant as the accused is Samadhi of Sh.Ram Rekha Singh, who is the father-in-law of the complainant. At the time of marriage of Smt.Beena daughter of Sh.Ram Rekha Singh with the son of the accused, Sh.Ram Rekha Singh requested the complainant for arrangements of necessary funds for solemnization of the said marriage and the complainant being the son-in-law and also keeping in view the situation arranged for a sum of Rs.1 lac by way of hypothecation of 02406R0256622002 -1- Baleshwar Parshad v. Kailash Prasad his own house and the said amount was received by Sh.Ram Rekha Singh with a promise to return the same within one month.
2. That Sh.Ram Rekha Singh father-in-law of the complainant failed to return the said loan amount even after repeated requests, reminders, personal visits etc. and in the compelling circumstances, the complainant reported the matter to the police authorities. When the accused came to know the fact, the accused intervened the matter and the accused alongwith Sh.Ram Rekha Singh and some other relatives visited the complainant and it was agreed that the accused will pay a sum of Rs.56,000/- to the complainant as the said amount was received by the accused from Sh.Ram Rekha Singh, hence, the accused has taken over the liability of Sh.Ram Rekha Singh.
3. That the accused in discharge of his liabilities towards the complainant issued an account payee cheque bearing no.374554 dated 30.4.2002 for a sum of Rs.56,000/- drawn on State Bank of India, Jawalapuri, New Delhi-110041 in favour of the complainant. The said cheque is Ex.CW1/A. While issuing the said cheque, the accused assured the complainant that the said cheque would be honoured on presentment. The complainant believing the representation of the accused to be true accepted the said cheque in good faith. The complainant deposited the said cheque with his banker for its encashment from the bank of the accused. However, the said cheque was received back dishonoured with the returning memo dated 1.5.2002 having remarks "Payment stopped by drawer" and the said memo alongwith dishonoured cheque was received by the complainant from his banker on 3.5.2002. The said returning memo is Ex.CW1/B.
4. That thereafter, the complainant got issued a legal notice dated 15.05.2002 sent to the accused through registered A.D. as well as U.P.C. whereby demanding the amount of the dishonoured cheque and the said legal notice was duly received by the accused on 18.5.2002 and acknowledgment to this effect has been received. The accused inspite of making the payment of the dishonoured cheque sent a misleading and false reply with a view to not making the payment of the dishonoured cheque. The copy of legal notice is 02406R0256622002 -2- Baleshwar Parshad v. Kailash Prasad Ex.CW1/C, A.D. card is Ex.CW1/D, postal receipt is Ex.CW1/E and reply sent by the accused is Ex.CW1/F. The accused even after receipt of the legal notice, failed to make the payment of the dishonoured cheque within the stipulated period and therefore, the complainant has filed the present complaint.
5. The complainant examined himself as CW-1 in his pre-summoning evidence and he reiterated the contents made by him in his complaint. He also examined Sh.A.C. Bandhu, Asstt. in State Bank of India, Jawalapuri branch, who exhibited two documents as Ex.CW2/A and Ex.CW2/B. Accordingly, the summoning order was passed against the accused on 02.07.2003. The notice under section 251 Cr.P.C. was served upon the accused on 25.01.2005, to which the accused pleaded not guilty and claimed trial. Accused even disclosed his defence at the time of framing of notice, stating that even though he had issued the cheque in question and signed on the same, the said signatures were taken from him forcibly. Accordingly, he stated that there is no liability against him to make any payment to the complainant.
6. The complainant thereafter filed his post summoning evidence by way of affidavit on 27.04.2005. He was then cross-examined on the said affidavit by Ld. Counsel for the accused. In the cross-examination of the complainant, he had stated that he had given the money to the accused, who is present in the court today amounting to Rs.1 lac. He also stated that the money was given to Kailash Prasad (accused) at the instance of Ram Rekha Singh. He also stated in his cross-examination that there was no document pertaining to the payment of money to him by accused, but the same was before the panchayat. He even mentioned the name of witnesses, which were present when the payment was made by the accused, namely Ram Rekha Singh, Vidya Ram Singh, Vijay Singh, Parmeshwar Singh, Narender Kumar, Awadh Kishore, accused Kailash Parshad and complainant. He also admitted receipt of a notice issued by the accused to him, wherein the accused had stated that the cheque in question has been fraudulently taken by the complainant. He even admitted the reply received by him to the legal demand notice and the said reply is Ex.CW1/G. He even admitted in his cross-examination that FIR No.193/04 u/s 406 IPC 02406R0256622002 -3- Baleshwar Parshad v. Kailash Prasad has been lodged against him by his sister-in-law (SALI) namely Beena Devi in P.S. Paschim Vihar. He, however, denied the suggestion that no money was handed over to the accused or that the cheque in question was taken by way of fraud in presence of vigilance officers namely Sh.R.K. SIngh and Rajender Singh posted at Bhola Nath Nagar, Shahdara DCP office.
7. Thereafter, the complainant examined one bank witness i.e. CW-2 namely Mr. B.L. Rajdan, Asstt. Manager, State Bank of India, Jwalapuri, New Delhi. The said witness had brought the bank records pertaining to the account of the accused and with regard to the cheque in question. He exhibited the photocopy of statement of account for the period w.e.f. 02.04.2002 upto 22.05.2002 as Ex.CW2/A. I have perused the said document. As per the said document, the cheque in question was stopped for payment by the accused on 29.04.2002. A duly certified copy of the letter issued by the accused regarding stop payment instructions to his bank i.e. State Bank of India, Jwalapuri was already exhibited as Ex.CW2/B in the pre-summoning evidence. I have perused the said letter as well. The said letter does not bear any date on it. However, it is clear from document Ex.CW2/A, which was led in pre-summoning evidence that with reference to the said letter, the bank has stopped the payment of the cheque in question, under instructions from the accused.
8. The complainant then closed his complainant evidence. The statement of accused u/s 313 Cr.P.C. was recorded and all the incriminating evidence were put to the accused. In the said statement, the accused denied the contention and allegations of the complainant made in the complaint. He categorically denied the liability alleged against him. He admitted the cheque in question and the signatures on the same. However, he stated that the said cheque was forcibly taken from him in the office of DCP. He also alleged that he was threatened by the police officials present there that in case he does not sign the cheque, he shall be implicated in a false dowry case. Accused admitted the returning memo filed in the complaint and the reason mentioned for dishonour of the cheque in question. He also admitted the receipt of the legal demand notice, but stated that he had duly replied to the 02406R0256622002 -4- Baleshwar Parshad v. Kailash Prasad said notice vide his reply dated 24.05.2002, which is already on record as Ex.CW1/G. He further admitted that despite the service of the legal demand notice, he did not make payment of the cheque amount. He also stated that the said money has not been paid as there was no liability against him towards the complainant.
9. Accused had then filed his evidence by way of affidavit alongwith other documents in his defence evidence, which were tendered on 13.09.2011. Affidavit of certain other defence witnesses was filed, but no such defence witnesses were examined as there was no list of defence witnesses filed by the accused.
10. In his evidence by way of affidavit, accused stated that the present complaint has been filed to harass him and as a counter blast of FIR No.193 dated 29.3.2044 lodged against the complainant. He exhibited the photocopy of the said FIR as Ex.AW1/1, which were only Marked as Mark-1, since the same was not an original document. Accused further mentioned in his affidavit that the complainant and Ram Rekha Singh had certain dispute among themselves and in an inquiry pending against Ram Rekha Singh, he was called at Vigilance Department of the police and from there, accused was called on telephone on 20.2.2002. When the accused went there, he was asked to come on 25.02.2002. Accused exhibited the copy of summons as Ex.AW1/2, which was also Marked as Mark-2 as the same was not the original document. He further mentioned in his affidavit that in the DCP office, the policemen of Vigilance Department namely, Sh.Rajender Singh and Sh.R.K. Singh closed the room and had beaten him and even harassed and pressurized the accused to give money. The incidence had taken place on 25.02.2002. He further alleged that the said policemen told him that in case he does not make the payment, then, a dowry case shall be made out against him on the complaint of the present complainant. He further stated in his affidavit that under the said influence, he got his cheque book from the Scooter and issued an unfilled cheque to the said policemen and the signatures on the said cheque were put by him under force and pressure exercised by the said policemen. He further alleged that the said police officials had told him that he can get the cheque back 02406R0256622002 -5- Baleshwar Parshad v. Kailash Prasad after giving cash in lieu of the same. Accused also filed a complaint dated 29.7.2002 given by him to Commissioner of Police, New Delhi, which is Ex.AW1/3. He even filed a complaint dated 21.02.2002 given by Ram Rekha Singh to DCP, East Distt., Bhola Nath Nagar, Shahdara, which is Ex.AW1/4. The accused even alleged that he had made a complaint to the local police and had even issued a notice dated 24.04.2002 to the present complainant which is Ex.AW1/5. He also exhibited original reply of the legal demand notice issued by the complainant as Ex.AW1/6 and the A.D. card of which was exhibited as Ex.AW1/7. Accused also gave a complaint to Human Rights Commission, copy of which is Ex.AW1/8 and the same is dated 29.07.2002. The accused had issued another letter through his Advocate, which is dated 13.07.2002, sent to the Commissioner of Police and Deputy Commissioner of Police (office of Vigilance), which is Ex.AW1/9 and the postal receipts of the same are Ex.AW1/10.
11. The accused was then cross-examined by Ld. Counsel for the complainant. A bare reading of the said cross-examination shows that there were no inherent contradiction found in the depositions of the accused as defence witness. The accused has affirmed in his cross-
examination that the cheque in question was drawn from his account and the signatures on the cheque were also admitted by him. The receipt of the notice was also admitted. The accused, however, stated that he does not remember as to for what amount the cheque in question was issued as he had not filled any details on the said cheque and only the cheque was signed by him. The accused denied suggestion that he has any liability to pay a sum of Rs.1 lac to the complainant. He further reaffirmed his averments made in the affidavit that on the night on 24.02.2002, the complainant had visited his residence and informed him that his Samdhi Sh.Ram Rekha Singh has been arrested and taken into custody in DCP office, Shalimar Bagh, Karkardooma. He further stated that thereafter he met Mr.R.K. Singh and Rajender Singh, police officers in the Vigilance Department, who had beaten him and had asked him whether he had brought any money to release his Samdhi and when he had told them that he had not brought any money, they asked him to hand over a cheque to them by exercising undue influence upon him. He further stated that they 02406R0256622002 -6- Baleshwar Parshad v. Kailash Prasad had taken a blank signed cheque from him and had also taken signatures on certain blank papers. He also alleged in his cross-examination that later on threats were given by said police officials, who had directed him to bring money otherwise they will take him away from his residence by force. He further reiterated the facts of the complaint made by him against said police officials to the Commissioner of Police and also in the office of DCP. The accused then denied the suggestion that he had not pursued the said complaint as there were false allegations made by him against the police officials Sh.R.K. Singh and Rajender Singh, and he voluntarily stated that he was frightened from the threats received from the said police officials. The accused further denied all the suggestion put by counsel for the complainant to test veracity of the deposition of the accused.
12. The accused did not examine any other witness in his defence evidence and no list of defence witnesses was also filed by the accused. The defence evidence was accordingly closed.
13. I have perused the entire material on record and heard the submissions of the rival parties.
The counsel for the accused also filed written submissions in support of his arguments, which have been perused.
14. At the outset, it is pertinent to mention the law in respect of section 138 of N.I. Act. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to prove all the following ingredients:
i. There is legally enforceable liability / debt.
ii. The drawer of the cheques issued the cheques to satisfy part or whole of the debt or other liability.
iii. The cheques so issued have been returned due to insufficiency of funds or exceeds arrangement.
iv. Payment not made by the accused despite service of the legal demand notice.
15. Moreover, the Negotiable Instruments Act also raises certain presumptions in favour of the 02406R0256622002 -7- Baleshwar Parshad v. Kailash Prasad holder in due course of a negotiable instrument. As per section 118 (a) of the said Act, "Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or 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;"
16. Section 139 of the Act stipulates and 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."
17. Under the light of these provisions and the provisions of the Law of Evidence, I have examined the evidence placed on record on behalf of both the parties. It is clear from the complaint and evidence by way of affidavit filed by the complainant that he had alleged that the loan amount was taken by one Ram Rekha Singh at the time of marriage of his daughter, namely Beena, for the purpose of arrangement of necessary funds for solemnization of the said marriage. It is also clear from the complaint as well as from the affidavit of the complainant that the amount was received by Sh.Ram Rekha Singh under promise to return the same within one month. Sh.Ram Rekha Singh has been stated to be father-in-law of the complainant. The complainant has even alleged that the accused had only come into picture when he intervened in a dispute between the present complainant and said Ram Rekha Singh and on the said intervention itself, the accused had agreed to pay a sum of Rs.56,000/- to the complainant. Accordingly, the complainant has alleged that the accused herein had taken over the liability of Sh.Ram Rekha Singh. Thus, it has been averred by the complainant that the cheque in question has been issued by the present accused for the said liability. In the cross-examination of the complainant, there are inherent contradictions found in the deposition of the complainant. In the cross- examination, the complainant had stated that he had given the money to the accused, who 02406R0256622002 -8- Baleshwar Parshad v. Kailash Prasad is present in the court today amounting to Rs.1 lac. He also mentioned that the money was given to the accused on reference of Ram Rekha Singh. In the entire cross-examination, the complainant has made allegations against the accused Kailash Prasad, and no allegations were found against Ram Rekha Singh, even though, the complainant had alleged that in his complaint and his affidavit that it was Ram Rekha Singh, who had borrowed the loan from him and the accused had only "taken over" the liability of Ram Rekha Singh upon himself, by issuing the cheque in question.
18. Moreover, in the statement of the complainant dated 09.10.2002 recorded at the time of pre-summoning evidence, the complainant has stated that Ram Rekha Singh had given a cheque of Rs.56,000/- to him on intervention of the police. This statement of the complainant also contradicts his allegations in the complaint that the cheque in question was given by the accused Kailash Parshad when he had intervened in a dispute between the complainant and Ram Rekha Singh. Further in the post summoning evidence by way of affidavit, the complainant has made a completely different statement by bringing a new fact stating that the amount of Rs.56,000/- taken by Ram Rekha Singh was in fact received by the accused and therefore, the accused had agreed to intervene in the dispute between the complainant and Ram Rekha Singh and had taken over the liability of Ram Rekha Singh upon himself (the accused). Thus, evidently the averments made in the complaint, in the statement of the complainant at pre-summoning stage, in his post summoning evidence by way of affidavit and his cross-examination in the post summoning stage, are self-contradictory statements and complainant has changed his stance at each and every stage.
19. Moreover, the cheque has been dishonoured for the reason "Payment stopped by drawer"
and the document pertaining to the stop payment instruction as well as the compliance of the said instruction by the banker of the accused, which has been corroborated by the statement of the concerned official from the said bank who was examined as a complainant witness, clearly prove the fact that the payment of the cheque in question was 02406R0256622002 -9- Baleshwar Parshad v. Kailash Prasad deliberately stopped by the accused. The accused in his defence evidence has substantiated the reason for giving stop payment instructions in respect of the cheque in question by stating that the cheque was procured by the complainant from him through illegal means and by way of force and undue influence exercised by the complainant upon the accused with the help of certain police officials. The documents filed by the accused in his defence evidence further corroborate his submissions and arguments. It is clear from the said documents that at the time of marriage of Ms. Beena daughter of Sh.Ram Rekha Singh certain articles which were gifted by the family of the bride to the groom which were fraudulently misappropriated by the complainant on 17.04.2011. The complaint regarding the said fact was made by said Ram Rekha Singh on 21.02.2002, which is Ex.PW1/4. On 29.07.2002, the accused herein had given a complaint to Commissioner of Police, New Delhi and to Human Rights Commission regarding procurement of the cheque in question by the complainant through illegal and inappropriate means. The accused had even made a complaint regarding two police officials namely Rajender Singh and R.K. Singh. The letter dated 24.4.2002 which is Ex.AW1/5 further affirmed the fact that the accused had informed the complainant that the cheque in question, which has been fraudulently procured by the complainant, is without any liability as the said cheque was to be returned after Ram Rekha Singh returns the amount of cheque in question i.e. to the tune of Rs.56,000/- to the complainant. Perusal of the said letter shows that the amount mentioned in the said letter is Rs.5,600/-, which appears to be an inadvertent mistake in view of the other documents and the evidence brought on record, which clearly prove that the cheque in question was for Rs.56,000/- and not for Rs.5,600/-. The accused had also given a reply to the legal demand notice of the complainant dated 24.05.2002, which has also been admitted by the complainant in his cross-examination. In the entire evidence of the accused, there appears to be no contradictions and inconsistency. The documents filed in defence evidence also remain unrebutted by the complainant. During the entire course of trial, the accused had maintained a consistent view that the cheque in question was procured from him by the complainant fraudulently and by exercising pressure. On the 02406R0256622002 -10- Baleshwar Parshad v. Kailash Prasad other hand, there are inherent contradictions and ambiguities found in the depositions of the complainant and in his affidavit.
20. According to the provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. In the present case, the accused has clearly discharged the onus of proof that the cheque in question was not issued for any liability against him.
21. As held in various caselaws, the standard of proof on the part of the accused and that of the prosecution is different in a criminal. Whereas, prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he/she relies (cited from, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of Drum Manufacturing Co. v. Amin Chand Pyarelal (1993) 3 SCC 35, after analysing various judgments, the Apex Court observed that 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 supported by a consideration. Such a presumption is rebuttable. The defendant (or the accused) can prove the non-existence of a consideration by raising a probable defence. Furthermore, in the recent judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) INSC 373 (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by 02406R0256622002 -11- Baleshwar Parshad v. Kailash Prasad Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is a rebuttable presumption, even though this initial presumption lies in favour of the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, prosecution can fail.
22. Therefore, in view of the material on record, submissions of the Counsel for both sides, and the settled positions of the law, I am of the considered view that the complainant has not been able to discharge the initial burden of proving his case beyond reasonable doubt as there are sufficient lacunas found in the complainant story. The contradictions in the statement of the complainant at various places further weaken the case of the complainant and it appears that the complainant has not come to the court with clean hands. On the other hand, the accused has been able to rebut the presumption of law that the cheque in question has been given in discharge of any legally enforceable debt or liability by adducing sufficient evidence to the effect that the cheque in question was given to the complainant under force, coercion, undue influence and through illegal means and thus, there stands no liability against the accused. In view of this court, the accused has clearly rebutted averments and allegations made by the complainant. The oral evidence of the accused was duly corroborated by the documentary evidence filed in the defence. The evidences remain unrebutted and uncountered and the accused had weakened the case of the complainant by bringing in preponderance of probabilities. Therefore, there is no liability u/s 138 of N.I. Act made out against the accused. The accused Kailash Parshad stands acquitted of the offence u/s 138 of N.I. Act. The complaint is, therefore, dismissed. Bail bond of the accused is cancelled and surety is discharged. Endorsements, if any, be cancelled and documents, if any, be returned.
23. File be consigned to record room after due compliance.
Pronounced in open court. (Ms. ANKITA LAL)
Dated: 04.08.2012 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
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