1 IN THE COURT OF SH. ASHWANI PANWAR, MM04([ACT]), NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI [ENTITY] Vs. [ENTITY] 1. Complaint Case no. : 28612/16 2. Date of Institution of case : 05.04.2014 3. Name of the complainant : [ENTITY] S/o Late M. R. Roy R/o 1280, B1, Vasant Kunj New Delhi - 110 070 4. Name of the accused : [ENTITY] S/o Sh. [ENTITY] R/o Flat No. 14, Sahara Apartments, 84/9, Kishan Garh, Vasant Kunj, New Delhi Also At: 53, Dr. S.P. Mukherjee Road Dumdum Cantt., Kolkata (WB) [ENTITY], Emergency Ward, 99 Sarat Bose Road, Kolkata (WB) 5. Offence Complained of : 138 [ACT]. Plea of accused : Pleaded not guilty. 7. Final Order : Acquitted 8. Date of Reserving Judgment : 09.08 2019 9. Date when judgment was : 27.08.2019 pronounced [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 1 of 10 2 J U D G M E N T:
1 Brief facts of the present case are that complainant and the accused were maintaining family relations for a long time; the accused had taken a friendly loan of more than Rs.25 lacs from the complainant under the pretext of purchasing properties at Kolkata and Dehradun. The accused in discharge of his debt and liability, issued two post dated cheques with request to present the same in the last week of January, 2014; on presentation of cheque bearing No. 473866 dated 24.01.2014 for Rs.22 lacs before the bank, the same was returned unpaid on 28.01.2014 with remarks "Account Closed". When the complainant tried to contact the accused, he was not willing to reply properly to the complainant.
2 Thereafter, the complainant sent a legal notice dated 21.02.2014 to the accused, which was duly served upon the accused. However, despite the service of legal notice, accused failed to make the payment. Hence, the present complaint. 3 Complainant examined himself as CW1 in pre summoning evidence (PSE) and on the basis of PSE and material brought on record by complainant, accused was summoned to face trial and on appearance of accused, bail was granted to him and after hearing the parties, notice of accusation u/[SECTION] [ACT] qua offence U/[SECTION] [ACT] was framed and served upon accused. Accused pleaded not guilty and claimed trial. He took the plea that the cheque in question was not issued by him. Although, the same bears his signatures, but the rest of the particulars were not filled by him. He used to give blank signed cheques to his wife for her personal use. The complainant used to have frequent visits to his home and he might have got hold of the cheques & misused the same. He further pleaded that the account from which cheques were issued was closed much prior to the issuance of cheque in question.
4. In post notice CE complainant examined himself as CW1. In his examination in chief by way of affidavit, he has deposed on the lines of facts mentioned in the complaint and relied upon number of documents i.e. Ex.CW1/A to Ex.CW1/I. Complainant also examined CW2 Sh. [ENTITY] and CW3 Sh. Shri [ENTITY].
5. After CE, statement of accused u/[SECTION]/[SECTION] [ACT] was recorded. In said statement, accused took the plea that he never took any loan from the complainant.
[PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 2 of 10 3 6 I have heard the arguments advanced on behalf of both the parties and have perused the record carefully.
It is well settled position of law that to constitute an offence under [SECTION] [ACT], the following ingredients are required to be fulfilled:
(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or inpart, of any debt or other liability;
(iii) That 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; (iiii) That cheque is returned by the bank unpaid, either 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) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such 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.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under [SECTION] of the [ACT].
7. It is now well settled that in case the accused admits his signatures on the cheque in question, there arises a presumption in terms of [SECTION] and [SECTION] of the [ACT] to the effect that the same was issued for valid consideration and in discharge of legally enforceable debt or liability. Further the presumptions under [SECTION] and [SECTION] of the [ACT] are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as the accused can rebut the same by placing reliance on the [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 3 of 10 4
material brought on record by the complainant. It is also well settled legal position that the presumptions can be rebutted even by raising presumptions of facts and law on the basis of material available on record. The aforesaid propositions of law have been laid down by Hon'ble Supreme Court in M/s [PRECEDENT] is not necessary for the accused to come in the witness box in support of his defence.
8. In [PRECEDENT], three Judge Bench of Hon'ble Supreme Court held that [SECTION] raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested. If accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As discussed above, it becomes amply clear that the accused does not need to discharge his liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. 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/her version of the story and say that on the basis of his/her version the story of the complainant cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant. 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 by the complainant, then there cannot be any inherent lacuna in the existence of liability. But then definitely accused can create some loopholes in the story of the complainant by impeaching the credit of witness during the cross examination. The strength of standards on the accused is not as high as placed and desired from the complainant. Accused can discharge its burden by demonstrating the preponderance of probabilities coming in its way. It was not enough for the cheque to have been issued and the same to have been dishonored, it was also for all its intents and purposes mandatory to establish that cheque was issued for discharge, in whole or in part for any legally enforceable debt or liability.
[PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 4 of 10 5
9. This is the case of the complainant that the accused and the complainant were having friendly relations. The complainant advanced loan of more than Rs. 25 lacs to the accused in span of 23 years through cheques and in cash towards the payment of two houses purchased by the accused. In order to discharge this liability the accused issued two post dated cheques to the complainant one of which is the cheque in dispute in this complaint which got dishonoured. At the time of handing over of the disputed cheque the accused requested to encash the cheque in the last week of January, 2014. The accused has admitted sign on the disputed cheques but denied other particulars to be in his writing. As the accused has admitted sign on the disputed cheques now it is to be seen whether accused has been able to rebut the presumption and if accused is liable to pay any legally enforceable debt to the complainant. In this regard, the court has to see whether the accused has been successful in rebutting the presumption.
10. In order to rebut the presumption the accused cross examined CW1 the complainant. In CE dated 02.11.15 CW1 on one hand stated that last time accused came to his house in May 2013, last time he visited the place of the accused persons in the same month and on the other hand complainant stated that he gave last loan to the accused in the month of September or October 2013. If it is to be believed that accused and complainant last met in the month of May 2013 then how complainant gave last loan to the accused in month of Sept or Oct, 2013. In this cross examination CW1 admitted that in his complaint he has mentioned loan of more than Rs. 25 Lacs given to accused that means complainant doesn't know exact amount of loan he gave to the accused. Further in cross examination dated 07.12.15 complainant CW1 stated that he gave Rs. 15 Lacs loan to the accused in year 2013, Rs. 3 Lacs in year 2012, Rs. 6.5 lacs in year 2011, Rs. 1 Lac in year 2010. He doesn't remember loan he advanced to accused in 2007,2008,2009 as they were loan of smaller amount. If we go by this statement of complainant it means from year 2010 to 2013 complainant advanced total loan of Rs 26 lac to the accused. Complainant has not mentioned if he demanded from the accused the smaller amount of loan he gave to the accused and on what terms and condition till what date accused was supposed to pay back the loan amount to the complainant. When complainant doesn't remember amount of loan he paid to accused in year [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 5 of 10 6
2009,2008,2007 and according to his cross examination he paid total amount of loan of Rs 26 lacs to the accused from year 2010 2013 then it is surprising why accused will issue cheques of total amount of Rs. 27 lacs when alleged liability to be discharged is Rs. 26 lacs. It is important to mention here that it is settled legal position that if the liability of accused as on the date of presentation of cheque is even one rupee less than the cheque amount, provision of [SECTION] of [ACT] is not attracted to dishonour of such a cheque.
11. The complainant CW 1 in his cross examination stated that in the year March/April 2013 accused person gave him the cheque amounting to Rs. 22 lacs and in the first week of May 2013 accused gave him the cheque amounting to Rs 5 lac. While in his cross examination complainant also stated that last time he gave loan to the accused in month of September or October, 2013. Further in his complaint, complainant mentioned that accused gave him two post dated cheques at his house in New Delhi and while handing over the disputed cheque in this complaint (along with other cheque issued from different bank) the accused assured the complainant i.e. as per complaint accused handed over both disputed cheques to the complainant together. Complainant in his complaint mentioned that accused at the time of handing over of disputed cheque asked the complainant to encash it in last week of Jan 2014. If It is to be believed that cheque of amount Rs. 22 Lacs was given in month of March April, 2013 and of Rs 5 lac in month of May 2013 then why accused will give post dated cheque of Rs. 22 Lacs dated 24.01.14 and cheque of Rs 5 lac dated 10.1.14. These contradictory statements of complainant cast suspicion on the evidence of the complainant that accused gave the disputed cheques to the complainant to discharge legally enforceable debt. Moreover accused has denied all other particulars except sign to be in his writing on the disputed cheque. Then it was on the complainant to prove that all particulars were in the writing of the accused as complainant has alleged that accused gave him post dated cheques ,which the complainant has failed to prove.
12. As per the present complaint no exact date has been mentioned by the complainant on which he advanced loan to the accused. Merely stating that the amount was paid in span of 2 3 years is not sufficient because when a person pays a huge [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 6 of 10 7
amount then ordinarily it is not expected from him that he forgets the exact date of the said payments. Further perusal of the evidence of complainant reveals that no writing regarding the alleged loan amount of Rs. 27,00,000/ was executed between the parties. More interestingly no terms and conditions regarding the return of the said amount was fixed between the parties. Here in the present complaint, all these facts have not been explained. Though complainant stated in his complaint that some part of loan was given by cheques to the accused but the complainant has not mentioned account details from which he paid the loan to the accused. This creates a suspicion about the payment of loan amount to the accused as the averments in complaint are vague.
13. In crossexamination CW1 stated that he first gave loan to the accused for fridge and TV while in his complaint complainant alleged that he gave loan to accused for payment of installments of houses alleged to be purchased by accused. It is somewhat unbelievable that person who was not in the capacity to buy TV and refrigerator was given huge amount of Rs 27 lacs as stated by the complainant. Further in CE dated 07.12.15 complainant has stated that he cannot remember amount of loan advanced to accused from year 20002009 as the amount was very small and it was given for his day to day expenditure. Again this statement made by the complainant raises doubt regarding advancing such huge amount to accused as the accused was not able to meet his day to day expenses. The complainant has further stated that he had mortgaged his flat and obtained a loan out of which money was advanced to the accused. No documents have been filed on record by the complainant which shows that he had mortgaged his flat.
14. In criminal trial where accused is subjected to intense scrutiny and his life and liberty is placed under scanner, it is all the more necessary that the execution of cheque against the alleged loan should be proved with evidence of irrevocable nature and of impeccable character. Mere production of cheque can not made the case of the complainant sacrosanct and absolute so as to exempt him from all blemishes and burdens. It is trite to say that Cheque as an instrument is very prone to be misused and thus it becomes all necessary for complainant to come up with cogent and convincing evidences to win over the confidence of the court.
15. The prosecution shall however make clear to court, each of the circumstances [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 7 of 10 8
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 possession of 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 complainant by the accused. The court can at best say that the cheque was in the 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 complainant by accused.
16. Further in his crossexamination, complainant has failed to tell about his specific income or earning. No authentic document has been placed on record by the complainant which shows his income. It is a specific plea of the accused that no loan amount was given to him by the complainant, then in such case burden to prove that the loan amount was given to the accused is upon the complainant, but the complainant has failed to prove any document which shows that how the loan amount was procured by him. It means that complainant has failed to prove any legal liability against the accused. In this regard Hon'ble Supreme Court of India in [CASE NUMBER] (Arising out of [CASE NUMBER]) case [PRECEDENT] decided on 13.11.2014 held that where complainant failed to prove his financial capacity to advance loan and that there is legally enforceable debt payable by accused to him, in such case accused is liable to be acquitted. Hon'ble Supreme Court of India in [CASE NUMBER] (Arising out of [CASE NUMBER]) case titled as [PRECEDENT] decided on 07.02.2013 held that no documentary or other material brought on record to prove loan transaction and date of demand of loan and giving of loan not stated in the complaint made the complaint fatal. Similarly, in [PRECEDENT], It has been held by Hon'ble supreme court as follows: "It has to be stated that in order to draw presumption under [SECTION] along with [SECTION] of [ACT], the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 8 of 10 9
amount to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favor of the complainant".
17. It was held in the case of [PRECEDENT] by Hon'ble Delhi High Court as well as in case of K. [ENTITY]an Vs. P.K. Surenderan 2008 (1) SCC 258 by Hon'ble Supreme Court that acquittal is proper on prosecution in complaints u/[SECTION] of [ACT] where complainant is not able to show the source of friendly loan or solvency for the same. In other words it was held that presumption of cheques gets dislodged where complainant is not able to give source of the amount loaned to accused.
18. In [PRECEDENT] decided on 15.03.19 Hon'ble Delhi High Court acquitted the accused and held that "it is very surprising that a person who earns only Rs 15,000/month would make an arrangement of Rs 4,90,000/ and give the same as friendly loan no date of extending the loan or rate of interest at which was loan was extended has been mentioned, neither there is any document executed nor the date when the loan was and of its repayment is mentioned."
19. Thus, in view of the totality of circumstances 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 that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. Therefore, considering the above mentioned facts and legal positions, it won't be unjustified and completely misplaced to say that the complainant has miserably failed to prove that the impugned cheque has been issued against the discharge of any enforceable legal debt or liability. Preponderance of probabilities lies completely in favour of the accused. The accused, in my considered opinion, has thus been able to rebut the initial presumption arising in favour of complainant under [SECTION] and [SECTION] of the [ACT] Further, the case of the complainant is required to rest on its own leg and the same can not be allowed to be bypassed in casual and cosmetic manner.
20. In view of the law discussed above, complainant has failed to prove the charges framed against the accused as per the standard required in the criminal law. Hence, the [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 9 of 10 10
accused is acquitted from the charges framed against him under [SECTION] of [ACT].
File be consigned to the recordroom, after due compliance.
Announced in the open (ASHWANI PANWAR) court on 27.08.2019 [ACT] [PRECEDENT] [PRECEDENT] [ENTITY] Vs. [ENTITY] Page No. 10 of 10