Delhi District Court
14. In 'Rangappa vs Sri Mohan (2010) 11 Scc 441, A on 28 September, 2018
IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
Old CC no.785/2017
Under Section 138 of N.I. Act
In the matter of:
GURINDER CHHABRA
s/o Shri Dilbagh Rai Chhabra
R/o WZ 15, 3rd floor,
Ram Nagar, Tilak Nagar
New Delhi -18
... Complainant
Versus
VIPIN GABA
s/o S. L. Gaba
R/o C7, first floor,
Ganesh Nagar Market,
Tilak Nagar,
New Delhi.
... Accused
Date of Institution : 03.01.2017
Date on which judgment was reserved : 15.09.2018
Date of Judgment : 28.09.2018
JUDGMENT
1. Shorn off unnecessary details, the case of the complainant as narrated in the complaint is that the complainant knows the accused and is having friendly relations with the accused since long. It has been averred in the complaint that in the month of May 2016, the accused had approached the complainant and had requested for a friendly loan of Rs.9 lacs as the same was required by the accused to meet his personal needs. The accused had promised to refund the same within a period of six months. Acceding to the request of the accused, the complainant advanced sum of Rs.9 lacs as loan. The same was also received / duly acknowledged by the accused and the accused executed a promissory note. The same has been exhibited as Ex.CW1/1. In the month of November 2016, to discharge his liability for repayment of the above said loan amount, the accused issued a cheque bearing no.315772 dated 02.11.2016 for sum of Rs.9 lacs drawn on The Kangra Cooperative Bank Limited, C-29, Community Center, Pankha Road, Janakpuri, New Delhi (hereinafter called as cheque in question) (Ex.CW1/2) to the complainant and assured the complainant that the cheque shall be honoured at the time of its presentation. Accordingly, as per the instructions of the accused, the complainant presented the cheque in question for encashment on 03.11.2016 which to the despair of the complainant, got dishonoured on presentation with the remarks ''Funds Insufficient'' vide cheque return memo dated 05.11.2016 (Ex.CW1/3). Thereafter, the complainant immediately contacted and apprised the accused regarding the fate of the above stated cheque and requested the accused for making payment of cheque amount. However, the accused flatly refused to make any payment. This constrained the complainant to send a legal notice dated 22.11.2016 (Ex.CW1/4) to the accused. The said legal notice was received by the accused. Thereafter, the accused sent a reply dated 01.12.2016 (Ex.CW1/7) wherein the accused flatly refused to pay the cheque amount and claimed that he had only taken sum of Rs.1 lac on interest and not sum of Rs.9 lacs. Thereafter, the complainant filed the present complaint.
2 Cognizance of the offence under Section 138 NI Act was taken against the accused and summons were issued. The accused entered appearance. Notice under Section 251 CrPC was framed against the accused to which he pleaded not guilty. In his plea of defence, recorded on 20.04.2017, the accused submitted that the cheque in question alongwith one more cheque was issued in blank signed condition to the complainant as security as he had taken loan of Rs.1 lac from the complainant.
EVIDENCE OF THE COMPLAINANT
3. In Post Summoning Evidence, the complainant chose to examine himself as sole complainant's witness and appeared as CW1 and adopted his Pre-Summoning Evidence tendered by way of affidavit Ex.CW1/A. The accused had filed an application under Section 145(2) NI Act and the accused was allowed to cross examine the complainant.
4. In his cross examination, the complainant deposed that he had advanced the loan in question in presence of his two friends on 12.05.2016. However, the complainant failed to disclose the name of his above stated friend in whose presence the loan was advanced. The complainant also admitted that the entire loan amount was paid in cash. The complainant deposed that the loan in question was advanced to the accused on interest @ 2% per month and the accused had failed to pay the interest component on time. It was also deposed by the complainant that the cheque in question was handed over to him on 02.11.2016. The complainant also admitted that he had advanced a loan for sum of Rs.4 lacs to one Saurabh Maggu in the year 2016. The complainant disputed the fact that the cheque in question was in blank signed condition when the same was handed over to him. The complainant categorically deposed that the cheque in question was a filled cheque at the time when the same was handed over to him. During his cross-examination, the complainant failed to disclose the income of the accused and pleaded ignorance. The complainant also testified that out of the loan amount of Rs.9 lacs, sum of Rs.4 lacs was taken by him from his wife as his wife was also having income as she was running a business of garments. The complainant also denied that he is a money lender by profession or that he had advanced a sum of Rs.1 lac as loan to the accused.
DEFENCE OF THE ACCUSED 5 The version of facts as discernible from the plea of defence recorded at the stage of framing of notice under Section 251 CrPC, from cross-examination of complainant CW1, from statement of accused recorded under Section 313 CrPC are that the accused has admitted the factum of taking loan from the complainant. However, it is version of the accused that he had only taken a loan of sum of Rs.1 lac and not Rs.9 lacs. At the same time, the version of the accused is that he has already repaid sum of Rs.1 lac to the complainant alongwith interest, in cash and that the cheque in question was issued to the complainant as security in lieu of the loan of sum of Rs.1 lac. However, the accused has admitted the factum of having receipt of legal demand notice sent by the complainant and has also replied to the said legal notice.
6. Accused chose to examine himself as sole defence witness and appeared as DW1. In his testimony, the accused deposed that he had only taken sum of Rs.1 lac from the complainant and that he has already repaid the same. The accused admitted that the complainant had made him sign on some blank papers at the time of advancement of loan and that he had handed over two blank signed cheques as security to the complainant. It is the version of the accused that after the loan amount was duly repaid, he had demanded the cheque in question back from the complainant. However, the complainant had failed to hand over the same on one pretext or the other. In his cross-examination, the accused admitted that he is not having any documentary proof of repayment of Rs.1 lac. The accused also admitted that he had not issued any stop payment instructions to his bank in respect of cheque in question. The accused also admitted that he had appended signatures and affixed his thumb impression on the alleged promissory note Ex.CW1/1.
7. The factual position being thus, now let us quickly run through the legal benchmark which is to be satisfied in order to constitute an offence u/s 138 NI Act-:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) that a cheque should have been issued for discharge, in whole or in part, or any debt or other liability.
(iii) that the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier.
(iv) that cheque is returned by the bank unpaid because of 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.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
8. Being cumulative, it goes without saying that it is only when, all the aforementioned ingredients are satisfied, that a person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
9. In the present case, the accused has admitted that he had handed over the cheque in question to the complainant. However, the defence which has been put forward by the accused is that the cheque in question was issued as a security cheque at the time of taking loan amounting to Rs.1 lac and therefore, the accused owes no legal liability towards the complainant to the tune of sum of Rs.9 lacs as has been alleged by the complainant.
10. On analysis of the facts and the legal position stated above, the court finds the parties to be at variance on one primary issue I.e whether the cheque in question was issued by the accused in favour of the complainant in order to discharge the legal liability to repay the loan amount of Rs.9 lacs.
11. File perused and submissions heard. Let us determine, whether the accused has succeeded in establishing various defence taken by him.
EXISTENCE OF LEGALLY ENFORCEABLE DEBT OR LIABILITY.
12. Let us again briefly recapitulate that the accused has admitted having drawn the cheque in question on a bank account maintained in his name and having signed the same. Once these foundational facts are admitted and a factual base is established, presumption of the cheque having been issued in discharge of legally sustainable liability and drawn for good consideration arises by virtue of Section 118 (a) and Section 139 of NI Act.
13. As per the scheme of the NI Act, on proof of foundational facts, a presumption arises as to the cheque having been issued in discharge of a legal liability and the burden is on the accused to rebut the said presumption. This clearly is an instance of the rule of ''reverse onus'' in action where it is incumbent on the accused to lead what can be called as ''negative evidence''. Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non existence of liability. Keeping in view, that this is a departure from the cardinal rule of ''presumption of innocence'' in favour of the accused, and also keeping in mind that the negative evidence is not easy to be led by its very nature. It is now fairly settled that the accused can rebut this presumption on a scale of preponderance of probabilities. Lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. Preponderance is superiority in weight. Preponderance of probabilities, simply put means more probably than not and superior in evidentiary weight than the opposite.
14. In 'Rangappa vs Sri Mohan (2010) 11 SCC 441, a three judge bench observed that Section 139 of the NI Act, is stated to be an example of a reverse onus clause which is in tune with the legislator intent of improving the credibility of Negotiable Instruments. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to the dishonour of the cheque.
15. In case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court had held:-
'The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or there non existence was so probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arises under Section 118 and 139 of NI Act''.
16. As discussed above, it is clear that the accused need not discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case, set out by the complaint. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore, the prosecution cannot stand. Or the accused can give his version of the story and say that on the basis of his version, the story of the complainant cannot be believed. In the first situation, the accused has nothing to do except to point inherent inconsistencies in the version of the complainant.
17 So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above, if an accepted signed cheque has been produced the complainant, then there cannot be any inherent lacuna in the existence of the liability. But then, definitely, accused can create some loopholes in the story of the complainant by impeaching the credit of the witness during cross examination. Accused can discharge his burden by demonstrating the preponderance of probabilities coming in its way.
18 Coming to the facts of the present case, it has been contended on behalf of the accused that accused has never taken the alleged loan of Rs.9 lacs from the complainant and therefore, no occasion arises for the issuance of cheque in question for sum of Rs.9 lacs to the complainant for discharging any liability to repay the alleged amount of Rs.9 lacs. Perusal of the file shows that the complainant who is the sole complainant witness has been cross-examined at length at the instance of the accused to create doubts on the version of events as have been testified by the complainant and to prove the defence taken by the accused. Let us determine, whether the accused has succeeded in creating doubts in the version of the complainant.
19 To begin with, the Ld. Counsel for the accused has drawn the attention of the court to para no.03 of the legal demand notice dated 22.11.2016 (Ex.CW1/4). It has been submitted by Ld. Counsel for the accused that in the legal demand notice, the complainant had averred that the cheque in question was handed over by the accused on 02.11.2015. However, in the complaint and in the affidavit Ex.CW1/A, the version of the complainant is that the cheque in question was handed over on 02.11.2016. Therefore, it has been contended on behalf of the accused that, there are material contradictions in the version of events advanced by the complainant and therefore, the testimony of the complainant is not credible and ought to be rejected. Per contra, Ld. Counsel for the complainant has argued that inadvertently, instead of 02.11.2016, 02.11.2015, got typed and the same may be taken as a typographical error and the same may be overlooked. After perusal of case file, I am of the opinion that the date of handing over of cheque in question (02.11.2015) mentioned in para no.3 of legal demand notice, is a typographical error and no adverse inference ought to be drawn against the complainant on this score alone.
20 Ld. Counsel for the accused has referred to cross examination of the complainant done at the instance of accused and has argued that the testimony of the complainant cannot be relied upon as the complainant has made improvements in his version of events at the time of his cross-examination and this itself creates doubts on the testimony of the complainant. It has been argued on behalf of the accused that the complainant had deposed in his cross-examination that the loan in question was advanced by him to the accused in presence of his two friends. However, the complainant has failed to disclose the names of such friends. On this ground, it has been submitted on behalf of the accused that the failure of the complainant in disclosing the names of the friends / witnesses in whose presence, the alleged loan was advanced, makes the testimony of the complainant unworthy of credence and the same cannot be relied upon.
21. At the same time, it has also been argued on behalf of the accused that the complainant has claimed in his cross- examination that he is always having ready cash amount of Rs.5- 6 lacs with him at any point of time, however, the ITR s for the relevant years which have been placed on record, by the complainant during his cross-examination, belies this claim of the complainant.
22. It has been contended on behalf of the accused that the complainant also admitted in his cross-examination that a sum of Rs.4 lacs was taken by him from his wife and the same was used to advance the alleged loan of Rs.9 lacs to the accused. Therefore, it has been argued on behalf of the accused that the complainant was neither capable nor was in possession of sufficient funds to advance such a huge loan and thus, this in itself raises questions on the financial capacity / competency of the complainant to advance such an humongous sum of Rs.9 lacs to the accused.
23. The quintessence of the submission made by the counsel for the accused appears to be focused on the point that it was not enough for the cheque to have been issued and the same to have been dishonoured, it was also for all its intents and purposes mandatory to establish that the cheque was issued for discharge, in whole or in part, for any legally enforceable debt or liability.
24. In a criminal trial under Section 138 of the NI Act, it is all necessary that the execution of the cheque against the alleged loan should be proved with evidence of irrevocable nature and impeccable character. Mere production of the cheque cannot made the case of the complainant sacrosanct and absolute so as to exempt in from all blemishes and burden. It is trite to say that the cheque as an instrument is very prone to be misused and thus it becomes all necessary for the complainant to come up with cogent and convincing evidence to win over the confidence of the court.
25. In C. Santhi vs Mary Sherly and anr., decided on 30.06.2011, Hon'ble High Court of Kerala filed deciding the difference between execution and issuance of the cheque, has held:-
''On consideration of the various aspects and provisions of the Act, I am of the view that the contention raised by an accused in the prosecution under Section 138 of the NI Act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leafs very often refer to as a blank 'cheque' but, strictly speaking, it is not a 'cheque', as defined under the Act. It can be treated only as containing admitted signatures of the accused. The admission of signature on cheque leaf alone, will not constitute admission of execution of the cheque................''. ''The prosecution, shall however, make clear to the court, each of the circumstances, relied upon by it, to establish drawing of the cheque by the accused. The mere fact that the cheque produced in the court came from the possession of the complainant alone will not be sufficient to prove execution, even though, it may be one of the circumstances. No law allows a court to presume that the cheque which is produced and marked in the court was handed over or delivered to the complainant by the accused. The court at best say, that the cheque was in possession of the complainant. But, under what circumstances, it came to his possession, is to be stated by the complainant. In the absence of such statement, court cannot proceed on any assumption that it was handed over to the complainant by accused''.
26. It has been argued on behalf of the accused that considering the financial background of the complainant, the amount of Rs.9 lacs is quite high and the capacity of the complainant in advancing such huge amount is needed to be delved deeper and scrutinized arduously.
27. Ld. Counsel for the accused has argued that despite specific suggestions, controverting the claim of the complainant, he failed to bring on record any evidence to corroborate his assertion of arranging the loan amount and advancing the same to the accused. The complainant did not examine his wife to establish the fact that she had advanced any amount to the complainant for purpose of advancing the same to the accused.
28 At the outset, it appears significant to mention that the fiction of friendly loan is very easy to be weaved, conceived and averred but very hard to be proved and establish. It becomes very captious when stakes are high and stands of the parties are fiercely and frantically brought forth with equal force and fortitude. In the present case, as per the assertions and avernments of the complainant, the accused had demanded the loan amount in the month of May 2016 and the same was advanced by the complainant on 12.05.2016 itself. The complainant had admitted in his cross examination that though he is an income tax payee, but he has not shown the fact of advancement of loan in his income tax returns. In his cross examination, the complainant testified that the source of the cash of Rs.9 lacs, was his savings of around Rs.5-6 lacs which was available with him at the time of advancement of loan and a part of above stated sum was arranged by him by taking the same from his wife. However, the complainant has failed to bring even an iota of evidence to prove his assertion that he was having a ready cash amount of Rs.5-6 lacs at the relevant time.
This suspicion on the financial credibility / competency of the complainant, further gets emboldened after perusing the income tax returns (Ex.CW1/D1 and Ex.CW1/D2) of the complainant. A bare perusal of Ex.CW1/D1 and Ex.CW1/D2, clearly shows that by no stretch of imagination, it can be concluded that the complainant was in possession of cash amount of Rs.5-6 lacs with him at the time of advancement of loan.
29. It is pertinent to mention that the complainant has admitted in his cross-examination that in year 2016 itself, he had advanced sum of Rs.4 lacs to one Saurabh Maggu, against whom he has filed a complaint under section 138 NI Act before Tis Hazari Courts. If the version of events, as deposed by the complainant are accepted as gospel truth, it emerges that the complainant was having possession of around Rs.10 lacs in cash in the year 2016. However, there is not even an iota of evidence, much less cogent, which could support this fact of the complainant having financial resources / competency of having possession of sum of Rs.10 lacs in year 2016.
30 Per contra, Ld. Counsel for the complainant has argued that at the time of advancement of loan, the accused had executed a promissory note which has been exhibited as Ex.CW1/1 and which clearly proves the factum of advancement of loan of Rs.9 lacs to the accused. However, Ld. counsel for the accused has argued that though the accused has admitted of having appending his signatures and thumb impressions on Ex.CW1/1, however, the accused has denied the factum of having executed Ex.CW1/1. Therefore, it was contended on behalf of the accused that once the accused had disputed the factum of execution of promissory note Ex.CW1/1, it was imperative for the complainant to prove the factum of execution of Ex.CW1/1 by leading affirmative evidence. It has been submitted on behalf of the accused that a bare perusal of Ex.CW1/1 shows that persons namely Bunty and Naveen Kumar have appended their signatures on Ex.CW1/1, as witnesses and the complainant has failed to examine the said Bunty and Naveen Kumar to prove the factum of execution of Promissory Note Ex.CW1/1 by the accused and therefore, adverse inference ought to be drawn against the complainant. I am in concurrence with the aforesaid submissions advanced on behalf of the accused and therefore, in my opinion, the complainant has failed to prove the factum of execution of Ex.CW1/1 and therefore, the alleged promissory note Ex.CW1/1 does not inspire confidence and corroborates and establishes the version of the complainant of having advance loan of Rs.9 lacs to the accused.
31 The argument of Ld. Counsel for the accused questioning the financial competency / prowess, of the complainant, is worthy of acceptance as it is quite normal for ordinary prudent person to remain assiduous and watchful while humoring into financial transaction. In the ordinary course of human nature, money matters are considered sensitive enough to demand alert and attentive attendance of human psyche. The degree of alertness and attentiveness, gets bigger and sharper with the increase in the amount and the fragile financial status of the lender which are inversely proportional to each other. In the present case, when a huge amount of money has been alleged to have been advanced, its all natural for the complainant to come forth with reliable and credible evidence. It appears quite indigestible and implausible to believe that the complainant would advance loan to the tune of Rs.9 lacs especially when the complainant himself admitted in his cross-examination that he has no knowledge regarding the income of the accused. Thus, the assertion of the complainant of advancing loan of Rs.9 lacs in light of the fact that the complainant is unaware regarding the income of the accused, makes way for the entire case set out by the complainant to get enveloped and enamored into the inscrutable smokes of doubt.
32 In 'K. Subramani vs K. Damodar Naidu' 2015, Civil Courts Cases 001 (SC), the Hon'ble Apex Court found the requirement of the complainant to establish his financial capacity to lend money relevant in cases under Section 138 of NI Act. Reliance in this regard can also be placed on the Judgment of Hon'ble High Court of Delhi in the matter titled as Satish Kumar vs State of Delhi 2013, VIII AD (Delhi) 465, in which it has been held as follows:-
"This Court finds some merits in the observations made by Ld. ASJ that the petitioner had not been able to prove any three sources of money. Though, he had specifically mentioned the same in his deposition. In fact, failure on his part to prove any entry in his bank account showing withdrawal of any amount during the relevant period, created a reasonable doubt about the consideration for the cheuqe in question.............''. ''.....................however, once burden of proof is shifted back to the petitioner / complainant, he was unable to prove his case beyond reasonable doubt by establishing the source of alleged friendly loan extended to respondent no.02, thus dis-entitling him to grant of relief on basis of the Negotiable Instruments.................''.
33. Therefore, in the light of the above discussion, the theory of handing over of the loan, does not inspire confidence. The complainant has failed to prove the alleged source of funds or his overall financial prowess / competency before the court as he has failed to prove his assertion that he was having ready cash amount of Rs.5-6 lacs with him at the time when the loan was demanded by the accused. At the same time, failure of the complainant to examine his wife to prove the fact of having taken sum of Rs.4 lacs from her also renders the friendly loan story unworthy of credence.
34. On the other hand, Ld. Counsel for the complainant has laboured hard to pick holes into the defence of the accused by submitting that accused has failed to prove his defence that the cheque in question was issued as a security cheque at the time of taking loan of Rs.1 lac and that the same has been misused by the complainant. It has been argued that the accused has failed to bring any plausible evidence to prove the defence taken by him.
35. It is a settled position of law that the case of the complainant should stand on its own leg. It cannot take advantage of the weakness of the defence, nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis. If defence version is incorrect, it does not mean the prosecution version is necessarily correct. Therefore, the contention of Ld. Counsel for the complainant regarding the weak defence of the accused appears to be of no use in sailing through the case of the complainant as accused has made decisive intrusion into the case built up by the complainant by successfully pointing out towards the inherently incurable defects into the web of facts weaved by the complainant.
36. The Hon'ble Apex Court in the epic Judgment passed in the case titled as 'Sharad Birdichand Sarda vs State of Maharasthra' (1984) 4 SCC 116, while discussing the principles of appreciation of prosecution and defence evidence, has held that-
''It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court''.
37. It is all more significant that presumption can only be raised in furtherance of prosecution case and not in derogation of the same. The three judge bench of Hon'ble Supreme Court in a case dealing with prevention of Corruption Act has observed in respect of presumption of law in ''Trilok Chand Jain vs State of Delhi', 1977 AIR 666 as under:-
''The presumption therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its inception''.
38 Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so, it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that it is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable in nature so as to entail criminal conviction of the accused and which the complainant has failed to bring.
39. In the case of 'Kulvinder Singh vs Kafeel Ahmad'', Crl L. P. 478 of 2011, decided on 04.01.2013, Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
40 At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused ''must be'' guilty and not merely ''may be'' guilty. The mental distance between ''may be'' guilty to ''must be'' guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of the loan. The accused has clearly presented a case which is superior in way. And as per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other. Consequently, the benefit of doubt must go to the accused. The material on record does not suggest that the accused ''must be'' guilty whichever way one looks at it.
41. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, I hold that the complainant has failed to prove his case. The accused has been able to rebut presumption under Section 118 and 139 NI Act arising in favour of the complainant.
42 In the light of the foregoing reasons, it is clear that the accused Vipin Gaba has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively. As a result of which, the accused Vipin Gaba stands acquitted of the offence under Section 138 of NI Act.
43 Copy of digitally signed Judgment be supplied to the accused, free of cost and the copy of be placed on the case file.
44. Bail Bonds under Section 437A CrPC are already on record.
45. File be consigned to RR.
Digitally signed by PUNEETPUNEET NAGPAL NAGPAL Date:
Decided on 28.09.2018 2018.09.28
16:14:53 +0530
Announced in open court.
(PUNEET NAGPAL)
MM (NI Act)-01/SW/DWK
New Delhi