[ENTITY] v. [ENTITY] IN THE COURT OF MS. [ENTITY], MM (NI ACT)-03, SOUTH-EAST, SAKET COURTS, NEW DELHI Mr. [ENTITY] C/o Mr. [ENTITY], R/o 85, Third Floor, Opposite Escort Hospital, Sarai Juliana, Okhla, New Delhi. . . . Complainant Vs. Mr. [ENTITY] S/o Mr. [ENTITY] R/o 23/689, DDA Flats, Madangir, New Delhi. . . . Accused [CASE NUMBER] OFFENCE COMPLAINED OF : U/[SECTION] of [ACT] PLEA OF ACCUSED : Not Guilty DATE OF INSTITUTION : 01.02.2010 DATE OF RESERVING ORDER : 25.01.2012 FINAL ORDER : Convicted DATE OF ORDER : 18.02.2012 Present: Sh.[ENTITY], Proxy Counsel for the complainant. 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. In the year 2007, the accused developed friendship with the complainant. Thereafter, with passage of time, the accused introduced all his family members to the complainant and on various occasions the accused discussed about the problems of his family with the [ENTITY] v. [ENTITY] complainant and the complainant started trusting the accused. When the complainant got totally trapped in the deception played by the accused and started blindly trusting the accused, the accused alongwith his parents came to the complainant and requested for friendly loan of Rs.1,00,000/- from the complainant for assisting them in settling issues with respect to their family property i.e. 7 Acres land in Survey No.1/1 and building bearing No.134 situated at Mariyapuram Panchayat, Ward No.9 in Village Thankamani, Idukki, Kerala. Under deception, the complainant gave friendly loan of Rs.1,00,000/- to the accused on 10.01.2008.
2. The accused had promised to repay the said amount of Rs.1,00,000/- on or before 30.10.2009 and the accused had issued a post-dated cheque bearing no.484933 dated 30.10.2009 for Rs.1,00,000/- drawn on The Federal Bank Ltd., branch at G-16, Satkar Building, 79-80, Nehru Place, New Delhi-110019 in favour of the complainant. The said cheque is Ex.CW1/1. Subsequently, the accused alongwith his brother Mr. [ENTITY] came to the complainant and informed that for settling issues with respect to their family property, an additional amount of Rs.2,50,000/- is required and requested the complainant to give further friendly loan of Rs.2,50,000/- and assured to return the full amount to the complainant on or before 30.10.2009. At the time of taking additional friendly loan of Rs. 2,50,000/-, the accused also issued another post-dated cheque bearing no.852621 dated 30.10.2009 for Rs.2,50,000/- drawn on The Federal Bank Ltd., branch at G-16, Satkar Building, 79-80, Nehru Place, New Delhi-110019. The said cheque is Ex.CW1/2.
Thereafter in July, 2008, the accused had taken further amount of Rs.2,50,000/- from the complainant on account of pregnancy of his wife Mrs. [ENTITY] and in September, 2008, the accused had taken further amount of Rs.1,00,000/- from the complainant for job visa of Canada for his brother Mr. [ENTITY]. Therefore, in all the accused had taken Rs. 7,00,000/- from the complainant as friendly loan, which the accused had promised to return on or before 30.10.2009.
3. That uptill 30.10.2009, the accused did not pay any amount to the complainant despite [ENTITY] v. [ENTITY] repeated requests and reminders and it became clear to the complainant that the accused and his family members had dishonestly induced him to give Rs.7,00,000/- to the accused. Vide legal notice dated 16.11.2009, the complainant demanded back the complete amount of Rs.7,00,000/- from the accused and his family members and further informed the accused that if the accused fail to clear his liability towards the complainant within 30 days of receipt of the legal notice, then, the complainant will deposit for encashment the above mentioned two post-dated cheques, totaling for Rs.3,50,000/-. The copy of legal notice dated 16.11.2009 is Ex.CW1/3. Despite receipt of the said legal notice dated 16.11.2009, the accused did not pay any amount to the complainant and vide reply dated 10.12.2009, through his counsel, the accused blankly denied his liability towards the complainant. The said reply dated 10.12.2009 is Ex.CW1/4.
4. That on 24.12.2009, the complainant deposited the above said two cheques for encashment, within the period of validity of the cheques, in account no.04851140014855 maintained with HDFC Bank Ltd., Branch at New Friends Colony, New Delhi, but the said cheques were returned unapid by the bank of the accused with remarks "Payment stopped by drawer" vide cheque returning memos dated 26.12.2009. The said return memos are Ex.CW1/5 and Ex.CW1/6.
5. The complainant, through his counsel, had given legal notice dated 02.01.2012 to the accused, by way of registered A.D. dated 4.1.2010 thereby calling upon the accused to pay Rs.3,50,000/- within 15 days of the receipt of legal notice. The copy of legal notice is Ex.CW1/7 and postal receipts of the same are Ex.CW1/8. The said legal notice was duly served upon the accused and A.D. card of the same is Ex.CW1/0. Despite receipt of the legal notice, the accused has not made any payment to the complainant within the period stipulated in the said legal notice and hence, the complainant filed the present complaint.
6. Accordingly, the summoning order was passed against the accused on 03.02.2010 and on appearance of the accused, the notice under [SECTION] [ACT] was served upon the accused on 09.02.2011, to which the accused pleaded not guilty and claimed trial. The [ENTITY] v. [ENTITY] accused also stated in his defence that he had never issued any cheque in favour of the complainant. Accused further denied having received any legal demand notice from the complainant. The accused also stated that he had kept blank signed cheques, which were lost while he was travelling with a friend. He also stated in his defence that a police complaint regarding the lost cheques was also lodged by him. Accordingly, the accused denied his liability in the present complaint.
7. I have perused the entire material on record and heard the submissions of the rival parties.
I have also perused the written submissions filed by counsel for the accused.
8. 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:
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.
9. 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;"
[ENTITY] v. [ENTITY]
10. [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."
11. The accused, thereafter, sought to cross-examine the complainant by moving an application under [SECTION] of [ACT]. In the cross-examination the counsel for the accused questioned the complainant regarding the sources from which he had arranged the money for lending to the accused. The complainant deposed that he was working with Bank of America in the year 2007 as Quality Controller with designation 'Team Developer' and was earning Rs. 20,000/- in that year. Even though the complainant did not state whether the said income was the monthly salary or the annual salary, but it can be easily inferred from the facts that the complainant meant that he earned Rs. 20,000/- per month. The complainant further deposed that he had lent Rs. 1,00,000/- to the accused on 10.01.2008 and for which no receipt was given by the accused. He further stated that the accused had given cheque Ex. CW1/1 in respect of the said money borrowed by him. Complainant further stated that he had also given an additional loan of Rs. 2,50,000/- to the accused on 01.05.2008, which was given in presence of the brother of the accused [ENTITY]. The complainant stated that he had arranged the said loan given to the accused from different sources, that is, some money was withdrawn from his salary account, some money was arranged from his business of rubber nursery, and some amount was arranged from his hometown in Kerala where he is a permanent resident and his parents had given him some money in cash when they visited him from Kerala. The complainant also deposed that his annual income in the year 2008 was around 3 to 4 lakhs. He further stated that out of the loan amount given to the accused, the accused has not paid any amount till date. However, he admitted that previously he had received certain amounts from the accused which were spent by the complainant for arranging flight tickets, etc. of the accused.
[ENTITY] v. [ENTITY]
12. The complainant further deposed that he has filed other police complaints against the accused under [SECTION] [ACT], which are registered as DD No. 38-B dated 15.02.2010 in P.S. New Friends Colony and the copy of the said complaint was exhibited as Ex. CW1/DX1. The complainant also stated in his cross-examination that the accused himself had filled the details on the cheques in question and on the back side of the cheque Ex. CW1/2, the address of the accused at point 'X' was filled by the brother of the accused in the presence of the complainant.
13. The accused examined four witnesses in his defence. The DW1 was the record-keeper of P.S. New Friends Colony. He exhibited two documents in his exmaination-in-chief, namely, true copies of DD entry no. 15-B dated 22.11.2008 and DD entry no. 33-B dated 13.03.2010, as Ex. DW1/1 and DW1/2. The said DD entries pertain to the complaints given by the accused in P.S. New Friends Colony. However, the perusal of the entries shows that no date has been mentioned on the same. In the cross-examination of the said witness, it was stated that the DW1 being only the record keeper of the said P.S., cannot say what was the substance of the complaint pertaining to the said DD entries. He also stated that it is not within his knowledge whether any action has also been taken on the said complaints or not. The entire deposition does not make out any good defence in favour of the accused as it does not bring out anything to support the averments of the accused that he had lodged police complaint in respect of the lost cheques, and the cheques in question were also part of the said complaint.
14. The accused then examined his brother [ENTITY] as DW2. The said witness deposed in a single statement that no amount was given by the complainant to the accused on 01.05.2008 or any other dates. However, the said witness when cross-examined by the complainant stated that he does not remember whether he has ever met the complainant. Evidently, this statement of DW2 is highly vague in nature and it appears that the witness is trying to suppress certain facts. The said witness in cross-examination admitted that they have a family property of 7 acres of land in Kerala. But he gave a very vague reply [ENTITY] v. [ENTITY] when he was asked whether he is aware whether the wife of his real brother (i.e. the accused), named [ENTITY] was on family way in July, 2008, as he stated that he does not know about the same since the wife of the accused was in Delhi that time. The entire deposition of the said witness is extremely dubious in nature and becomes highly unreliable piece of evidence in view of the fact that the said witness is also the real brother of the accused himself.
15. The accused examined a third witness in his defence, namely, DW3 [ENTITY]. The said witness deposed that he had never introduced the complainant and the accused. During the cross-examination, the said witness admitted that he knows both the complainant as well as the accused and that he was also the flatmate of the accused. The witness also admitted that he runs a shop at Sarai Julliana, where both the accused and the complainant used to make purchases. Now, deposition of the said witness is also not very reliable especially in view of his extremely proximate relation with the accused, that is, being his flatmate. Moreover, when the witness stated that both the parties used to make purchases from his shop, the possibility of he having introduced the complainant and the accused to each other at some point of time cannot be completely ruled out.
16. No additional evidence was adduced by the accused to support the submissions of both DW2 and DW3 and their evidences appear to be highly implausible and ambiguous in nature, especially in view of the fact that they share a good personal relation with the accused, one being the real brother and another being the flatmate.
17. The accused lastly examined himself as a defence witness under [SECTION] of [ACT] In his deposition, the accused stated that the complainant is very-well known to him as they live in each other's neighborhood. He also stated that the complainant used to visit his home quite often and they used to have food together, since the year 2007. He further deposed that he had never given any cheque to the complainant and he does not know how the cheques in question came into the possession of the complainant. He further stated [ENTITY] v. [ENTITY] that he had lost a cheque for a sum of Rs. 2,50,000/- in the year 2008 and the said cheque had his signatures and amount written on it when the same was lost, and that he had also lodged a police complaint in respect of the said lost cheque in P.S. New Friends Colony. He stated that the said cheque is part of the present complaint. He further deposed that he got to know that the said cheque as well as another cheque is in the possession of the complainant only when he received a letter from the complainant dated 16.11.2009, which is Ex. CW1/3. He further stated that, thereafter, he lodged another complaint in respect of the second cheque as well, which was for Rs. 1 lakh. The accused filed the copy of both his complaints as Ex. DW4/A and DW4/B.
18. In the cross-examination, the accused admitted his address on Ex. CW1/7, that is, the legal demand notice. The accused further admitted that the amount in words and figures and the signatures on the cheques in question are in his own handwriting, but the payee name and the date are not in his handwriting. He further stated that he cannot say whose signatures appear at point 'X' on the AD card vide which the notice was sent, Ex. CW1/9, however he stated that it is correct that his name "BIJU" is mentioned on it and the address mentioned on the AD card is also his correct address. Nonetheless, the accused categorically denied receipt of the demand notice Ex. CW1/9. Now, once the accused had admitted that the address written on the legal demand notice as well as on the AD card is his correct address and also admitted the fact that his name appears on the AD card, the onus was upon him to rebut the fact that the notice was not served upon him, if he disputes the same. But, no evidence was led by him to rebut the same. Thus, it can be assumed that the legal demand notice was duly served upon the accused.
19. Further, the accused admitted that in his complaint Ex. DW4/A, which is dated 22.11.2008, he had made specific allegation against one Mr. [ENTITY] and the said complaint was pertaining to three lost cheques bearing numbers 852621, 852626 and 852630. He also admitted that the complainant was not travelling with him on 06.11.2008 when he had suspected that the cheques were stolen. Ld. Counsel for the complainant in [ENTITY] v. [ENTITY] his arguments submitted that the said admission by the accused is contrary to the complaint dated 22.11.2008 (i.e. Ex. DW4/A). But the perusal of the said document does not bring out any contradiction in the statement of the accused, as the accused had lodged the said complaint against said [ENTITY], who had allegedly stolen the bag of the accused which had three signed blank cheques in it, while he was travelling with the accused herein on 06.11.2008.
20. Now, the apparent contradiction which appears in the statement made by the accused in cross-examination and the complaint Ex. DW4/A is that the accused had stated in his examination-in-chief as well as in cross-examination that the cheques had his signatures and amount, both in figures and words, mentioned on it when they were lost. However, in the cross-examination accused had stated that the three cheques were blank signed cheques which were kept in his bag when they were lost. Moreover, the accused stated that he had sent a reply to the letter dated 16.11.2009 sent by the complainant to the accused. The said reply was dated 10.12.2009 and the same is Ex. CW1/4. A reading of the said reply also nowhere mentions about the cheques in question nor about the filing of complaint dated 22.11.2008 by the accused in Police Station nor is there any mention regarding the theft of the cheques on 06.11.2008 as alleged in the said complaint. In his reply, the accused had only flatly denied the averments of the letter dated 16.11.2009, even though the complainant had specifically mentioned the cheque numbers in his letter and had specifically stated that he shall present the said cheques for encashment if the accused fails to make the payment of the loan amount. This fact was also admitted by the accused during cross-examination.
21. Further, the perusal of the record shows that the second complaint (Ex. CW4/B) was lodged by the accused on 13.03.2010. A bare reading of the said document shows that in the entire body of the complaint, the accused had nowhere said anything about cheque no. 484933, which is also part of the present complaint. In the complaint dated 13.03.2010, the accused had only referred to his previous complaint lodged on 22.11.2008 and [ENTITY] v. [ENTITY] thereafter alleged that it has come to his notice that one [ENTITY] (the complainant herein) is misusing the said cheques by filling huge amounts in the same. This part of the allegation in complaint Ex. DW4/B also contradicts the statement given by the accused in his examination-in-chief as well as in the cross-examination that the amount in figures as well as words was already filled on the cheques when they were lost.
22. It is also clear from the record that the second complaint lodged by the accused is dated 13.03.2010. The legal demand notice dated 02.01.2010, was dispatched on 04.01.2010. The said notice was never replied back by the accused; however, the accused had admitted his address on the notice as well as the A.D. Card. It, thus, appears that the said second complaint was an after-thought of the accused and once the accused received the legal demand notice he lodged this second complaint dated 13.03.2010 to prepare his defence against the complainant and to escape his liability in respect of the cheques in question. However, the accused miserably faltered as he could neither prove the non-service of the legal demand notice, nor could sufficiently establish as to why he had not mentioned about the cheque number 484933 in his complaint, when the legal demand notice had clearly referred to the dishonour of two cheques, and even the earlier letter/notice dated 16.11.2009 had also referred to this second cheque. The contradictions in the averments of the accused in the said complaint and during his deposition before the court, also further weaken the case of the accused. Accused has also not sufficiently explained as to why he alleged stealing of the cheques by the present complainant in his second complaint on 13.03.2010, although he had already become aware of the possession of the cheques with the complainant much earlier, i.e. on 16.11.2009 itself when the complainant sent the said letter to the accused.
23. The accused could also not explain during cross-examination as to why he had not pursued his said complaints given in police station. The accused had, on the contrary, admitted in his cross-examination that no FIR in respect of the said complaints was ever lodged. He also stated that he had visited the police station 2-3 times thereafter, to follow-
[ENTITY] v. [ENTITY] up the complaint, but he did not come to know about any action taken by the police on the basis of the said complaint. The accused, however, admitted that he had not filed any other complaint in any other court of law regarding the lost cheques. The complaint of the accused dated 22.11.2008 alleges that the accused suspects that one Sh. [ENTITY] must have stolen his cheques. However, nothing has been brought on record to show that the accused pursued this complaint against said [ENTITY]. The said [ENTITY] was also not brought as witness by the accused and the whereabouts of the said [ENTITY] were never brought to the notice of the court. The accused after more than an year of lodging the said complaint against [ENTITY], took a different stand in his second complaint dated 13.03.2010 and alleged the theft of the same cheques against the present complainant [ENTITY]. This appears to be nothing but an after-thought of the accused, as he tried to implicate the complainant on the same case on which he had earlier implicated said [ENTITY]. The fact that the accused never pursued his complaint against the said [ENTITY] does raise a suspicion that the accused tried to prepare a false defence against the complainant, and later on tried to implicate the complainant as well for stealing the said cheques. The accused had after taking a huge some of money from the complainant in the year 2008 between January to September, lodged a complaint for the theft of the cheques in November, 2008. Moreover, the present complaint to pertains to two cheques, out of which only one of the cheques, along with two other cheques, was alleged to have been stolen in the complaint of the accused dated 22.11.2008. The second cheque of the present complaint, that is cheque bearing no. 484933, was never alleged as being stolen in any of the complaints filed by the accused, nor any evidence was brought on record to prove that the said cheque is also a stolen cheque.
24. The perusal of the record further shows that the cheques were dishonoured for the reason "stop payment". The accused never brought any evidence to show as to when he had issued the "stop payment" instructions to his banker in respect of the said cheques. But, the accused in his complaint dated 22.11.2008 had stated that he has already given "stop [ENTITY] v. [ENTITY] payment" instructions in respect of the cheques which he claimed to have been lost. There is nothing brought on record to show as to when and for what reasons the "stop payment"
in respect of other cheque number, i.e. 484933, were given by the accused. Moreover, as observed earlier, the fact that the accused had neither discussed about this second cheque either in his first or second complaint to the police or even his reply to the notice/letter dated 16.11.2009, clearly create a suspicion that the accused is making a false story.
25. Ld. counsel for the accused in his written submissions stated that the complainant had not specifically mentioned in his complaint as to from where he had arranged the said loam amount, and thus, in absence of any such details regarding the existence of the legal liability, the complaint under [SECTION] of [ACT] is not maintainable. The counsel for the accused further submitted that after calculating the income of the accused from all sources as stated by him during his cross-examination and after deducting his savings, etc., his annual income comes to approx. 2 lakhs. It was, thus, argued that it does not inspire any confidence that the complainant could have lent a sum of Rs. 7 lakhs to the accused in the year 2008 between January to September. On the basis of these submissions, counsel for the accused challenged the existence of any legally debt or liability in favour of the complainant. The counsel for the accused also quoted certain judgments in support of his arguments, namely, [PRECEDENT]. The said argument of the counsel for the accused is extremely a hypothetical one and without any merits. The contention of the counsel for the accused that the complainant's annual income was Rs. 2 lakhs in the concerned year, is a random calculation of the income of the accused and is based on mere conjunctures and surmises and does not provide any good defence. Moreover, in view of the provisions of [SECTION] and [SECTION] of the [ACT], there is a strong presumption that the drawer of the instrument had issued the same for a consideration and in discharge of a legally enforceable debt or liability.
26. The argument of the Ld. Counsel for the accused that it is highly unbelievable that the [ENTITY] v. [ENTITY] complainant could have lent a sum as huge as Rs. 7,00,000/- in a year to a person to whom he was only acquainted for about an year, is also a very hypothetical argument and cannot rebut the presumption of liability against the accused. The fact that the accused had asked for the loan amount of Rs.1,00,000/- and Rs. 2,50,000/- on two occasions on the second occasion stating that he has to resolve a family dispute regarding an ancestral property was never rebutted. Rather, the brother of the accused who was examined as defence witness admitted that there does exist a family property of 7 acres of land as alleged in the complaint. Moreover, even if for the sake of argument it is assumed that there was no dispute regarding any family property between the accused and his family, it has not been explained by the accused in his defence as to how and from where did the complainant got to know about the complete details of the property of the accused which was situated in Kerala. Also, the fact of taking of another loan of Rs. 2,50,000/- for meeting out pregnancy related expenses of the wife of the accused also could not be rebutted. The brother of the accused (DW2) also nowhere denied the fact that the accused and his wife were on family way in 2008 for which the accused had sought a loan of Rs. 2,50,000 from the complainant in July, 2008. No evidence was also brought on record on behalf of the accused to counter the fact that the medical and pregnancy related expenses of the wife of the accused were never met out from a loan of Rs. 2,50,000 as alleged.
27. Further, relying upon the judgment of [PRECEDENT], Ld. Counsel for the accused submitted that the loan was given without any receipt, and thus, in the absence of any such documentary proof, the existence of legally enforceable debt of liability cannot be presumed. The said submissions of the accused also does not come as a good defence as it can be easily assumed from the facts of the present case that the loan was given solely on trust and faith basis and the accused had allured the complainant by seeking sympathy from him by discussing his personal and financial problems with the complainant and thereby winning his confidence. The complainant had also mentioned the brother and the wife of the accused as being witness to the granting of [ENTITY] v. [ENTITY] the loan on two different occasions. Now, it is highly improbable to think that the complainant would make up a false case and in the facts he would mention the brother and the wife of the accused as witness to the loan given on two occasions, as it is anybody's imagination that the said witnesses if brought as a defence witness, would never depose against the accused since they have a blood relation to the accused. The depositions of the witnesses also do not rebut the fact that the loan was not given for the purposes as alleged in the complaint.
28. The counsel for the accused also raised an argument that the existence of the debt or liability in favour of the complainant also could not be proved in view of the fact that the loan amount was not reflected in the Income Tax Returns filed by the complainant for the relevant assessment year. Ld. Counsel for the accused relied upon the judgment of [PRECEDENT] in support of the said argument. Now, it is well-settled position of law that the friendly loans are not reflected in the Income Tax Returns as the same are not given as part of any business transactions and in the present complaint it was never alleged that the complainant was a licensed financier or into any sort of licensed money-lending business. Thus, the argument of the counsel for the accused is not a good argument to rebut the presumption of existence of liability against the accused, and therefore, the said argument is without any merits.
29. Ld. Counsel for the complainant, in his counter submissions, quoted a judgment of Hon'ble Supreme Court of India titled as [PRECEDENT] (decision dated 07.05.2010) which discusses the manner in which the statutory presumption under the provisions of [ACT] can be rebutted in the case of cheque dishonour cases.
30. I have perused all the judgments quoted by the respective counsels. It is a clear position of the law as laid down in various judgments that the standard of proof on the part of the accused and that of the prosecution is different in a criminal trial. Whereas, the [ENTITY] v. [ENTITY] 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, [PRECEDENT]. 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 thoroughly 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.
31. Thus, in view of the material on record and the settled principles of law, it can be stated that the accused was not able to sufficiently rebut the presumption lying in favour of the complainant. The contradictions and discrepancies in the depositions of the accused at various places further weaken the defence of the accused. The witnesses produced by the accused also could not establish any good defence in favour of the accused. In view of the material on record, submissions of the Counsel for both sides, the admission by the accused of the signatures on the cheque in question as well as the fact of giving "stop payment" instructions to his banker, the admission of the address of the accused on the legal demand notice, and the presumption of the law lying in favour of the complainant, I [ENTITY] v. [ENTITY] am of the considered view that the complainant has proved its case beyond reasonable doubt as against the accused. Accused has clearly failed to rebut the presumption of law. Accused could was not able to sufficiently prove the fact that the cheques in question were stolen and the defence led by the accused could also not bring to light any rebuttal of the liability against the accused. I, therefore, hold accused [ENTITY], guilty of the offence under [SECTION] of [ACT]. Accused is convicted.
File be consigned to record room after due compliance.
Pronounced in open court. (Ms. [ENTITY]) Dated: 18.02.2012 [ACT]. [ENTITY] v. [ENTITY] IN THE COURT OF MS. [ENTITY], MM (NI ACT)-03, SOUTH-EAST, SAKET COURTS, NEW DELHI Mr. [ENTITY] C/o Mr. [ENTITY], R/o 85, Third Floor, Opposite Escort Hospital, Sarai Juliana, Okhla, New Delhi. . . . Complainant Vs. Mr. [ENTITY] S/o Mr. [ENTITY] R/o 23/689, DDA Flats, Madangir, New Delhi. . . . Accused ORDER ON SENTENCE Date: 23.02.2012 Present: Sh.[ENTITY], Counsel for the complainant.
Sh[ENTITY], Counsel for the accused alongwith accused in person.
Accused [ENTITY] has been convicted for the offence punishable u/[SECTION] of [ACT] vide judgment dated 18.02.2012. I have heard Ld. Counsel for complainant as well as Ld. Counsel for the accused on the sentencing of the accused.
Ld. Counsel for the accused submits that the accused is the sole bread earner of the family and a family to take care of. It is further submitted that the accused has small children look-after and is also liable to maintain his wife. It is further submitted by Ld. Counsel for the accused that the accused has never defaulted in appearance before the Court during the entire course of the trial, except on one occasion when exemption was sought on genuine and reasonable ground. It is further submitted that the accused has never been involved in any litigation in past and has absolutely clean antecedents. Ld. Counsel for the accused prays that considering the young age of the accused, his family background, his socio-economic status and the nature of the offence, and [ENTITY] v. [ENTITY] the fact that he was only a victim of the circumstances, a lenient view may be taken towards the accused and he be released on fine only.
Ld. Counsel for the complainant has argued that great inconvenience and harassment has been suffered by the complainant in contesting the present complaint. A lot of expense has been suffered by the complainant in terms of money and time. It is also argued that the trial has stretched for more than 2 years and the complainant has suffered great hardship in prosecuting the present complaint. It is further argued that the cheque amount is also huge and also the accused had never made any attempts to compound the matter during the entire course of the trial. Ld. Counsel for the complainant also argued that the accused had infact taken a loan to the tune of Rs. 7 lakhs from the complainant, which has not been repaid till dated and the present complaint pertained to only two cheques given by the accused for repayment of part liability of the said loan, therefore, the accused should also be made liable to pay entire loan amount to the complainant, by way of compensation. Ld. Counsel for the complainant also prayed that since the accused has also breached the trust and faith of the complainant, who granted him the loan considering him as good friend and by showing sympathy towards the accused, thus, stricter punishment be imposed upon him, so as to create a deterrent effect in such offences.
I have perused the record of this case and considering the submissions of both the counsels, I am of the view that keeping in mind the young age of the accused, his family background, his socio-economic status in the society, his antecedents, and the nature of the offence, and at the same time balancing the interests of both the parties, I deem it proper to impose a sentence till the rising of the court upon the accused alongwith a compensation of Rs. 4,50,000/- which shall be paid to the complainant. In default of payment of compensation, the accused shall be liable to undergo a Simple Imprisonment of 1 month. The accused shall be confined to the custody of the courtroom on 24.02.2012 till 4 P.M. Bail Bond of Accused [ENTITY] is cancelled. Surety is discharged. Endorsements, if any be cancelled. Documents, if any, be returned.
[ENTITY] v. [ENTITY] At this stage, an application under [SECTION] of [ACT] is moved by the counsel for the accused [ENTITY]. Application perused, heard. Same is allowed. Accused [ENTITY] is admitted to bail on furnishing a personal bond and surety bond in a sum of Rs.1,00,000/-. Personal Bond & Surety Bond furnished and considered. The surety has given two FDRs totaling to a sum of Rs. 20,000/- and for the remaining surety amount RC of the surety has been produced, which are retained by the court. Personal Bond and Surety Bond are accepted for a period of 30 days or until Appeal is preferred by the accused, whichever is earlier. Sentence of the accused [ENTITY] is suspended till then.
Copy of this order as well as the copy of judgment be given to the accused immediately, free of cost.
Pronounced in open court. (MS. [ENTITY]) Dated: 23.02.2012 [ACT].