Document Fragment View
Fragment Information
Showing contexts for: document lost in Anil Kumar Sehrawat vs Virender on 4 September, 2024Matching Fragments
9. Ld. Counsel for the accused filed an application to examine the accused as witness. The accused was examined on oath on 08.07.2024. In his chief he stated that he had taken a loan of Rs. 2 lakhs from the complainant in 2019 which he returned with interest within 4-5 months. His cheque book was stolen from his van and he had filed a police complaint and a letter to the bank. The Lost Document complaint and letter was placed on record by him as Ex.DW-1/1(OSR) and Ex. DW-1/2 (OSR). The accused was duly cross examined. He was asked about his financial capacity. The accused was confronted with the entries on his bank statement to which he admitted that the complainant had transferred an amount of Rs. 3,44,500/- on different dates as per the bank statement. DE was closed and final arguments were heard.
2024.09.04 03:42:00 +0530 Anil Kumar Sehrawat Vs. Virender Page No.8 of 14
16. Learned counsel for the accused contended that the actual reason for the dishonor of the cheque was the issuance of stop payment instructions, which the accused had directed to his bank after the cheques were lost. The counsel relied on a letter dated 20.08.2019, sent to the bank, as evidence. The reason for dishonor stated on the return memo is 'Kindly contact drawer/drawee bank.' When a witness from the accused's bank was summoned, it was testified that the bank has no record of any complaint made by the accused. Despite this, it is well- established that a "stop payment" falls within the ambit of Section 138 of the Negotiable Instruments Act, as held in Modi Cements Ltd. v. Shri Kuchil Kumar Nandi 1998 AIR SCW 842. The accused claimed that his cheque book was stolen, and this defense is supported by a Lost Document online complaint made to the Delhi Police. The copy of the lost document complaint is on record as Exhibit DW-1/1. The complaint specifically mentions the cheque book and was registered prior to the filing of the present complaint. Considering that the burden on the accused is only to the extent of a preponderance of probabilities, he is required to raise only a probable defense to rebut the presumption. In the court's opinion, by producing the police complaint, the accused has demonstrated bona-fides and raised a credible defense. Consequently, the accused has successfully rebutted the presumptions against him. Therefore, the court cannot proceed to convict him without further consideration.
21. The primary contention remaining for the accused is his defense regarding the loss of his cheque book. He claims that the cheque in question was never issued to the complainant, as it was lost. The accused has relied on a lost document report filed with the Delhi Police on 20.08.2019. On one hand, the complainant has a strong case supported by concrete evidence showing the loan transaction between the parties. On the other hand, the accused presents a police complaint claiming the cheques were lost. During cross-examination, the accused was questioned about any further action taken on his complaint, to which he responded negatively. There is no evidence on record to show that the accused ever followed up on this complaint. The evidence must be considered in its entirety, alongside the testimonies provided by the parties at different stages of the trial. His credibility has already been called into question due to inconsistent claims regarding the repayment of the loan. While the accused admits to prior loan transactions, he denies issuing the cheque to the complainant. When all the evidence on record is considered, the accused's claims appear inconsistent.