Parshu Ram v. [ENTITY] IN THE COURT OF MS. [ENTITY], MM (NI ACT)-01, SOUTH-EAST, SAKET COURTS, NEW DELHI [ENTITY] S/o Sh.M.L. Verma, R/o H. No. B-1204, Jahangir Puri, New Delhi-110033. . . . Complainant Vs. [ENTITY] (DDA Wale) R/o H. No. J-349, Janta Jeevan Camp, Tigri, Khanpur, New Delhi-110062. Also at : Office Address: C-B Department, (Chief Engineer Office) DDA, Siri Fort, Hauz Khas, New Delhi. . . . Accused CC NO. : 1408/10 OFFENCE COMPLAINED OF : U/[SECTION] of [ACT] PLEA OF ACCUSED : Not guilty DATE OF INSTITUTION : 02.01.2010 DATE OF RESERVING ORDER : 17.07.2012 FINAL ORDER : 25.07.2012 DATE OF ORDER : Acquitted. Present: Sh.[ENTITY], Counsel for the complainant alongwith complainant in person. Sh.[ENTITY], Counsel for the accused alongwith accused in person. JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/[SECTION] of [ACT]. The brief facts of the case are as follows: -
1. That in the month of April, 2008, accused approached to the complainant and requested for a friendly loan of Rs.1,00,000/- from the complainant as he was in dire need of money and assured the complainant that the aforesaid loan amount would be refunded within one year. Believing his words to be true, the complainant haded over a sum of Rs.1,00,000/- to Parshu Ram v. [ENTITY] the accused in cash in presence of the witness Sh.[ENTITY]. Thereafter, the accused issued four post dated cheques of different dates in favour of the complainant towards discharge of his liability as part payment.
2. The complainant presented the cheque no.248371 (Ex.CW1/A) of amounting Rs.21,000/-
dated 28.10.2009 drawn on State Bank of Bikaner and Jaipur, Sarita Vihar, New Delhi-110044, issued by the accused as part payment of loan amount with his banker, but it returned unpaid with the endorsement "Funds Insufficient" vide bank return memo dated 03.11.2009, which is Ex.CW1/B. The complainant informed the accused about the fact of dishonour of the above said cheque and requested him to make the payment of cheque amount, but accused did not make the payment of cheque amount. At last, on 12.11.2009, the complainant sent a legal demand notice dated 11.11.2009, copy of which is Ex.CW1/C, through his counsel vide registered A.D. and under postal receipt to the accused, which was duly served upon the accused as the acknowledgment card duly signed by the accused returned to the complainant's counsel. The postal receipts are Ex.CW1/D (colly), UPC receipt is Ex.CW1/E and acknowledgment cards are Ex.CW1/F (colly). But the accused did not make the payment within the stipulated period of the legal notice and therefore, the present complaint, which is Ex.CW1/G, has been filed by the complainant against the accused.
3. Accordingly, the summoning order was passed against the accused on 24.01.2011. The notice under [SECTION] [ACT] was served upon the accused on 19.05.2011, to which the accused pleaded not guilty and claimed trial.
4. In the post summoning evidence, the complainant did not file any affidavit and in view of the judgment of [PRECEDENT], pre-summoning evidence by way of affidavit was read for the purpose of post summoning evidence. The complainant was then cross- examined on the said affidavit as well as on other documents on record by the counsel for the accused. In his cross-examination, the complainant inter alia stated that he knows the accused for last more than 3 to 4 years i.e. since 2005. The complainant, however, stated Parshu Ram v. [ENTITY] that he was not a frequent visitor to the house of the accused, but the accused used to visit his son-in-law's residence quite often. The complainant also stated that he had lent the money to the accused at the residence of his son-in-law and the said money was lent in cash. The complainant also stated that the accused has not given any receipt of the said payment. Thereafter, the complainant voluntarily stated that the receipt was not given as the complainant had loan transactions with the accused in past as well. On being again questioned, the complainant reiterated that he has never visited the house of the accused and he also stated that even accused has never visited his house.
5. On further questioning, the complainant stated that his son-in-law was also present at the time he had given the money to the accused. He further stated that the accused had never returned any money to him after taking the loan. The complainant also stated that the accused had given four cheques to him bearing all the details except the date on it and the same were given to him in January, 2009 and the said cheques were towards the repayment of the said loan. The complainant also averred that he presented the first cheque for encashment in the year 2009 after asking the accused for presenting the same. However, when the said cheque got dishonoured, he had contacted the accused, who asked him to present the cheque after some time. Thereafter, the accused also asked him to present all the remaining three cheques, but when the complainant presented the same, the said three cheques also got dishonoured and the complainant has filed three complaints in respect of the said dishonoured cheques. The complainant once again reiterated that the details on the cheques except the date was filled by the accused in his own handwriting and in the presence of the complainant. He further stated that the said loan was given as a friendly loan and there was no interest charged on the same. Thereafter, the complainant was questioned on the authenticity of the documents i.e. legal demand notice and affidavit, to which, the complainant stated that he had signed them on his own. The complainant, however, denied all other suggestions put by the counsel for the accused testing the veracity of the submissions made by the complainant.
Parshu Ram v. [ENTITY]
6. Thereafter, the statement of the accused under [SECTION] [ACT] was recorded and all the incriminating evidence were put to the accused in the said statement. The accused stated that he had taken a sum of Rs.50,000/- from the son-in-law of the complainant for sending the same to his village. The son-in-law of the complainant had asked him to give four blank signed cheques to him as security for the repayment of the said loan. Accordingly, he had given blank signed cheques to the son-in-law of the complainant. The accused further stated that he had already repaid Rs.30,000/- to the son-in-law of the complainant. However, no receipt for the same was given to him by the son-in-law of the complainant. The accused also stated that prior to the repayment of Rs.30,000/-, he had also given three installments totaling to a sum of Rs.8,664/- to the son-in-law of the complainant as interest on the principal amount. It was further stated by him that he had received a letter from the complainant whereby he got to know that the complainant has not received any money. The accused further stated that he had called up the complainant on his telephone and has informed him about the payments already made by him to the son-in-law of the complainant and also stated that no receipt for the same had been given to him. The accused finally concluded his statement by saying that he is ready to pay the balance amount which is due upon him for the said loan.
7. The accused lead two witnesses in his defence i.e. DW-1 [ENTITY] and DW-2 [ENTITY].
DW-1 [ENTITY] deposed in her examination-in-chief that the complainant had given a sum of Rs.50,000/- to the accused in the year 2006. It was further stated that out of the said amount, Rs.35,000/- was given by way of cheque and remaining Rs.15,000/- was given as cash. The said witness further stated that the complainant had given the said amount to one person named [ENTITY] at the residence of the said witness. DW-1 thereafter stated that since the accused and the complainant did not know each other directly, therefore, the amount was handed over to the said [ENTITY]. She also mentioned that at the time when the said money was handed over, there were four people present at her residence namely herself, accused, [ENTITY] and one [ENTITY]. She also stated that after the Parshu Ram v. [ENTITY] money was handed over, the complainant had taken four blank signed cheques from the accused. She also stated that the accused had already repaid the entire amount to the complainant in installments, out of which, three installments of Rs.12,000/-, Rs.8,000/- and Rs.10,000/- were paid initially totaling to a sum of Rs.30,000/- and later on, the accused had paid five installments of Rs.2,888/- each to the complainant towards balance amount. She stated that the accused used to hand over the installments to her and the same were handed over by her to said [ENTITY]. She, however, denied any knowledge as to whether said [ENTITY] had paid the amount to the complainant or not.
8. DW-1 further averred that after some time, the accused came to her residence and showed a letter and stated that the said letter has been received by the accused from the complainant demanding the payment of Rs.50,000/-. DW-1 made a call on the phone number written on the letter and informed the person, who spoke on the phone that the accused had already made the payment and all the payments were handed over to [ENTITY] and it was also informed that said [ENTITY] had not given any receipt for the payments. She stated that the person, who spoke on phone told her that he does not know why [ENTITY] has not given receipt and also stated that the accused can stop making payment to said [ENTITY] if no receipts are being given to him. She also mentioned in her examination that one [ENTITY], who was witness to the amount lent by the complainant to the accused, had prepared a note in his handwriting stating that the complainant has handed over Rs. 50,000/- to the accused.
9. DW-1 was then cross-examined by counsel for the complainant. In her cross-examination she stated inter alia that she knows the accused as the accused is her brother-in-law. She also stated that she knows [ENTITY], who lives in her neighbourhood and they have good cordial relations and visit each other's home quite often. However, she stated that she cannot tell the address of said [ENTITY]. She also submitted that the entire loan has been repaid by the accused in about six months. She further stated that she has not signed on the document i.e. the note prepared by [ENTITY] in his handwriting when the loan was given to the accused. She thereafter denied the suggestion that no loan has been given by [ENTITY] Parshu Ram v. [ENTITY] to the accused. She also denied the suggestion that the loan was given to the accused in April, 2008. She further stated that she has not taken any receipts from [ENTITY] regarding the installment, which were paid by her to [ENTITY] on behalf of the accused.
10. The accused then examined DW-2 [ENTITY], who stated in his examination-in-chief that around 5/6 years back i.e. in or about year 2006 when he had gone to visit the accused, the accused and one [ENTITY] were having conversation regarding transaction of Rs.50,000/-. The accused and said [ENTITY] made him a witness to the said transaction and also got his signature on a pronote which was issued to the said [ENTITY] by the accused. Then accused gave 3/4 cheques to the said [ENTITY] and all the cheques were blank signed cheques. The said [ENTITY] has kept the cheques in his possession as the accused had to return certain money to said [ENTITY]. Thereafter, [ENTITY] left from that place. DW-2 on being cross-examined by counsel for the complainant, he inter alia stated in his cross- examination that the pronote was only signed by him at that time. He also stated that the pronote was duly filled when it was given to him for signing, but he cannot say who had filled the said pronote. He also stated that he had not taken any acknowledgment of the pronote signed by him. He further mentioned in his cross-examination that no transaction of money had taken place in his presence and only a pronote was issued in his presence. He also stated that the cheques were handed over by the accused to [ENTITY] in his presence. He thereafter denied all the suggestions put by counsel for the complainant to test veracity of his statement given in examination-in-chief. He also stated that the entire discussion regarding the transaction mentioned in his examination-in-chief, had taken place at the residence of the accused at Jaitpur and that one [ENTITY] was also present at the residence of the accused when he had gone to visit him.
11. I have perused the entire material on record and heard the submissions of the rival parties.
12. At the outset, it is pertinent to mention the law in respect of [SECTION] of [ACT]. In order to determine the question whether offence punishable under [SECTION] of the Act is made out against the accused, it is necessary to prove all the following ingredients:
Parshu Ram v. [ENTITY] 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.
13. Moreover, the [ACT] also raises certain presumptions in favour of the holder in due course of a negotiable instrument. As per [SECTION] 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;"
14. [SECTION] 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] for the discharge, in whole or in part, or any debt or other liability."
15. 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. The complainant has stated in his complaint that he had given the alleged friendly loan of Rs.1 lac in the presence of a witness named as Sh.[ENTITY]. The same statement was made by the complainant in his pre-summoning evidence by way of affidavit. In the cross- examination of the complainant, the complainant has however stated that he had lent the money to the accused at the residence of his son-in-law in cash. He has also stated in his cross-examination that his son-in-law was present at the time when the money was given to the accused. The complainant has not examined the witness namely Sh.[ENTITY] throughout the course of trial, which was stated to be a witness of the alleged Parshu Ram v. [ENTITY] transaction. The relationship of [ENTITY] with the complainant was also no where discussed during the entire proceedings. The statement given by the complainant in the cross-examination that his son-in-law was present at the time when the money was lent, clearly contradicts his statement in the complaint and affidavit that the person named [ENTITY] was witness of the transaction. From the entire evidence on record, it is clear that the name of son-in-law of the complainant is [ENTITY] as mentioned by the accused. Therefore, by no means it can be assumed that [ENTITY] and [ENTITY] is one and the same person. No evidence to that effect has also been led in the present complaint. Thus, in view of the said observation, it is clear that the complainant has given contradictory statement in the complaint and his cross-examination.
16. The complainant also mentioned in his complaint that the accused had given four post dated cheques to him which were for different dates towards the discharge of his liability as part payment. It was nowhere mentioned as to for what amounts the said cheques were issued. Moreover, the present complaint alongwith two other connected complaints, which are before the court, pertain to only three cheques, out of which, two cheques are of Rs. 31,000/- in [CASE NUMBER] and the third cheque is for a sum of Rs.21,000/- in [CASE NUMBER]. In the complaint as well as in the evidence on record, there has been no mention about the fourth cheque as to whether the same has been honoured or not, or whether any complaint pertaining to dishonour of the said fourth cheque has also been filed by the complainant. The complainant had stated in his cross-examination that when he presented the first cheque and when the said cheque got dishonoured, he had contacted the accused, who asked him to present the cheque again after some time. It is also stated by the complainant that thereafter the accused asked him to present all the three remaining cheques as well and when he presented the same, the said three cheques also got dishonoured, which are cheques in the above mentioned three complaints. However, it is once again observed that there has been no mention of the fourth cheque or the first cheque which the complainant alleges in his cross-examination that the same was dishonoured. Moreover, total amount of three cheques, which are in the above mentoined Parshu Ram v. [ENTITY] three complaints, amounts to a sum of Rs.83,000/-. The alleged loan given by the complainant was for Rs.1 lac. It is not clear whether out of the said amount of Rs.1 lac any part payment has been made by the accused or not. The complainant also did not mention about the said fact in his complaint or in his evidence. It is, therefore, clear from the said facts and said contradictions in the statement of the complainant that the complainant has suppressed true facts from the court and has not come to the court with clean hands.
17. It is further noted from the complaint that the complainant has stated that all the four post dated cheques were given to him by the accused at different dates mentioned on the same. However, in the cross-examination of the complainant, the complainant has once again changed his earlier version and has stated that the accused had given four cheques to him bearing all the details except the date on it. These two statements clearly contradict each other and the complainant fails to prove the liability against the accused.
18. The accused on the other hand has maintained a consistent view throughout the trial. In his statement u/[SECTION] [ACT], the accused had stated that he had taken a sum of Rs. 50,000/- from the son-in-law of the complainant. He also stated that son-in-law of the complainant had taken four blank signed cheques from him as security for the said loan amount. The accused even mentioned that he has already repaid a sum of Rs.30,000/- to the complainant and later on, he had paid three installments totaling to a sum of Rs.8,664/- to son-in-law of the complainant, which included the principal amount plus interest on the loan amount. Accused stated that no receipts for the said payment were ever given to him by son-in-law of the complainant. The said statement of the accused was further corroborated by DW-1 and DW-2. DW-1 and DW-2 also supported the submissions of the accused that the loan was taken by the accused from son-in-law of the complainant namely [ENTITY]. DW-1 even stated that the amount was given in her presence and a cash sum of Rs.35,000/- was given by way of cheque by son-in-law of the complainant to the accused and the remaining sum of Rs.15,000/- was given as cash. The fact of repayment of the loan by the accused was also corroborated by DW-1. DW-1 mentioned the name of Parshu Ram v. [ENTITY] DW-2 as well while stating that said DW-2 was also witness to the transaction between son-in-law of the complainant and the accused. There were no contradictions pointed out in the statement of DW-1 and in her cross-examination. There was also no apparent contradiction in the version of the DW-2. Thus, the accused has succeeded in rebutting the presumption of law lying in favour of the complainant and has sufficiently disproved the liability against him. The accused even succeeded in proving that the cheque was not given in discharge of any legally enforceable debt or liability. The complainant on the other hand has clearly failed to prove the liability against the accused. The inherent contradictions in the statements of the complainant also make the complainant story doubtful and fraught with ambiguities. It is clear from the record that the complainant has not come with clean hands.
19. According to the provisions of [SECTION] of the [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] 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] amplifies the general rule of [SECTION] 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.
20. 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 Parshu Ram v. [ENTITY] Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of [PRECEDENT], 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] 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 [PRECEDENT] (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by [SECTION] 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.
21. 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 accused has categorically disproved the complainant's case. The complainant has clearly failed to prove his case beyond reasonable doubt. The presumption of law lying in favour of the complainant that the cheque in the complaint has been drawn by the accused in discharge of a legally enforceable debt or liability stands rebutted. The complaint is, therefore, dismissed. The accused [ENTITY] is acquitted of offence under [SECTION] of [ACT].
22. File be consigned to record room after due compliance.
Pronounced in open court. (Ms. [ENTITY]) Dated: 25.07.2012 [ACT].