[PRECEDENT] page no. 1 of Pages 12 IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI Complaint No. 105/11 Unique ID No. 02402R0265652011 PS. Krishna Nagar Ms. [ENTITY] W/o Sh. Kamal Talwar R/o B13/8, Krishna Nagar, Delhi51 Complainant. Versus Sh. [ENTITY], S/o Sh. [ENTITY], R/o H.No. 352/1, Teliwara, Shahdara, Delhi32 Accused. COMPLAINT U/[SECTION] OF THE [ACT] Offence complained of : U/[SECTION] [ACT] Date of commission of offence : 18.08.2011 Plea of Accused : Not guilty Complaint filed on : 02.09.2011 Final Arguments heard & Concluded on : 24.05.2013 Date of decision of the case : 29.06.2013 Final order : [PRECEDENT] page no. 2 of Pages 12 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/[SECTION] [ACT] (as amended up to date) filed by the complainant Ms. [ENTITY], against the accused [ENTITY].
2. The facts in brief necessary for the disposal of the present case are that at the request of the accused the complainant had given a loan of Rs.2,00,000/ to the accused being a close friend of her husband. Towards discharge of the said loan, the accused issued two cheque i.e. bearing no. 409711 dated 15.01.2011 for the sum of Rs. 1,00,000/ and bearing no. 409712 dated 25.01.2011 of Rs.1,00,000/ both are drawn on Punjab National Bank, Shahdara branch, Delhi to the complainant but on presentation the said cheques were returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memos dated 06.07.2011. Thereafter a legal notice was sent to the accused on 01.08.2011 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid the cheque amount to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 31.10.2011 for the offence U/[SECTION] [ACT]. On appearance of the accused [PRECEDENT] page no. 3 of Pages 12 notice U/[SECTION] [ACT] Dated 05.03.2012 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined herself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. She also exhibited original cheques bearing No.409711 as Ex. CW1/A, bearing no. 409712 as Ex. CW1/B, the cheque returning memos are Ex. CW1/C & Ex. CW1/D, the legal notice of demand dated 01.08.2011 is exhibited as Ex. CW1/E, The original receipts of registered post is Ex. CW1/F. During her cross examination of CW1 she exhibited death Certificate of her father in law Sh. [ENTITY] as Ex. CW1/G, Statement of account of the husband of the complainant from 01.04.2009 to 31.03.2010 as Ex. CW1/H. Certificate issued by the Syndicate Bank as Ex. CW1/I, Statement of account of the husband of the complainant from 01.04.2004 to 25.05.2012 as Ex. CW1/J. Thereafter, the complainant evidence was closed at request.
5. After that on 03.08.2012 the statement of accused was recorded U/[SECTION] [ACT] in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that he has never taken any loan from the complainant and the cheques in question were not issued by him in favour of the complainant. It is further submitted by him that infact husband of the complainant used to keep his blank [PRECEDENT] page no. 4 of Pages 12 signed cheque book with him and the cheques in question were given by him to the husband of the complainant for further paying the same to Kunj Bihari Chit Fund from where accused had taken a committee. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1 and reaitreted his defence as stated in his statement U/[SECTION] [ACT]. He has also filed certified copy of a case filed by the complainant against him in the Court of Ld. ACMM(NE) as Ex. DW1/1(colly). During the cross examination of DW1 the documents were put to the DW1 which are exhibited as Ex. DW1/X1 & Ex. DW1/X2 & Ex. DW1/X3. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of [SECTION] of the [ACT] are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within [PRECEDENT] page no. 5 of Pages 12 the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/[SECTION] [ACT].
8. Now let us deal with the each ingredient of the [SECTION] of [ACT] to see whether the case against the accused has been proved or not.
WHETHER THE CHEQUES IN QUESTION HAVE BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
9. It is submitted by the CW1 that at the request of the accused the complainant had given a loan of Rs.2,00,000/ to the accused being a close friend of her husband. Towards discharge of the said loan, the accused issued two cheque i.e. bearing no. 409711 (Ex. CW1/A) dated 15.01.2011 for the sum of Rs. 1,00,000/ and bearing no. 409712(Ex. CW1/B) dated 25.01.2011 of Rs.1,00,000/ both are drawn on Punjab National Bank, Shahdara branch, Delhi. Admittedly the cheques in [PRECEDENT] page no. 6 of Pages 12 question are bearing the name of the complainant as payee and signature on the cheques are admitted by the accused to be his own, thus prima facie it appears that the cheques in question were issued in favour of the complainant.
10. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/[SECTION] [ACT] that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
11. Further [SECTION] of the [ACT] provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the [SECTION] for the discharge in whole or in part of his debt or liability.
12. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by [SECTION] and [SECTION] of [ACT].
13. It has been observed by the Hon'ble High Court of Delhi in [PRECEDENT] that the offence u/[SECTION] [ACT] is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the [PRECEDENT] page no. 7 of Pages 12 onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence.
14. Therefore after the establishment of the fact that the cheque was issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under [SECTION] & [SECTION] of the [ACT] can be rebutted only by cogent evidence. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in [PRECEDENT]. In [PRECEDENT] it was held by Hon'ble Supreme Court that:
To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as 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 nonexistence of [PRECEDENT] page no. 8 of Pages 12 consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
15. In the present matter the following circumstances shows that the defence of the accused is true one:
a) In her cross examination it is submitted by the complainant that she is a housewife and does not have any source of income.
b) It is submitted by the complainant that she had given a sum of Rs.3,00,000/ in total to the accused as a sum of Rs.
2,26,000/ was given after getting a loan sanctioned on the account of her father in law and on the same day a sum of Rs. 24,000/ was given by her in cash to the accused. However, she has not filed on record any loan agreement or any written document showing that any such amount was received by the accused from the complainant on the given date. Further it is submitted by the complainant that she had not gone to the bank at the time of taking that loan (of Rs.2,26,000/ in the name of father in law of the complainant) or giving the money to the accused. She specifically submitted that "however my husband had told me that a sum of Rs.2,26,000/ was given to the accused". These words of the complainant clearly suggest that the money was not given by the complainant herself to the accused nor the money was given in her presence, it was just her husband told her that the sum of Rs.2,26,000/ had been given to the accused. This piece of evidence is hearsay. The best [PRECEDENT] page no. 9 of Pages 12 witness would have been the husband of the complainant but the complainant did not choose to examine her husband. Thus the fact of giving a sum of Rs.2,26,000/ to the accused is not proved.
c) In her cross examination it is submitted by the complainant that she can not tell who had filled up the particulars on the cheques. She also accepted that accused has not signed on the cheques in her presence. Thus the defence of the accused that the cheques were given without filling in the name of payee to the husband of the complainant appears to be probable. Further the complainant could not tell even in her cross examination the day or even the month of the year 2010 when the cheques in question were given by the accused to her.
d) The complainant is not having any source of income, however, she is claiming that she has given a loan of Rs. 3,00,000/ to the accused and apart from that she had also given some other loans to the accused of Rs.9000/, Rs.20,000/ etc. However the accused has filed on record certified copy Ex. DW1/1 (collectively) of an another case filed by the complainant against the same accused wherein she has claimed that she had given a loan of Rs.8,50,000/ to the accused against which two cheques of Rs.7,50,000/ & Rs.1,00,000/ were given by the accused to her. Despite opportunity Ld. Counsel for the complainant did not cross examined the accused on the point that no such case has been filed by the complainant which proves that the case claiming the sum of Rs.8,50,000/ was also [PRECEDENT] page no. 10 of Pages 12 filed by the complainant against the same accused. Hence, it became very improbable that a housewife admittedly having no personal income, hence, not filling Income Tax Return would give the loans of more then Rs.11,50,000/ in total in cash to a person without even asking him to execute any loan agreement.
e) It does not appear probable that the complainant would have given a sum of Rs.2,26,000/ without interest to the accused as claimed by her by taking the same as loan in the name of her father in law from a bank which must have charged some interest on the same.
f) In the decision reported as [PRECEDENT]., it was observed as under: "52. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of [SECTION] of the Act.
16. It is contended by the Ld. Counsel for the complainant that the accused has not brought on record any document to prove that these two cheques were given for handingover the same to Kunj Bihari Chit fund, hence, accused could not prove his defence. It is true that the accused have not examined anyone from Kunj Bihari Chit Fund and has also not shown any document on record which shows that the cheques in question were issued for handingover the same to Kunj Bihari Chit Fund. [PRECEDENT] page no. 11 of Pages 12 However, it is the duty of the complainant to prove his / her own case. The case of the prosecution must stand on its own legs as held in ([PRECEDENT]). It cannot take advantage of the weakness of the defence. In the case in hand the complainant has miserably failed to prove her case. Further the accused was only under duty to raise a probable doubt in the story of the complainant which has been done by the accused in the present case by cross examining the complainant.
17. Thus the defence of the accused that the cheques in question were given to the husband of the complainant for further giving the same to Kunj Bihari Chit Fund appears to be probable. It is established principle of law that the accused has only to create a doubt in the version of the complainant, while as the complainant has to prove the guilt of the accused beyond reasonable doubt.
18. Thus from the above stated discussion it is clear that the accused has been able to prove his defence. He has rebutted the presumptions U/[SECTION] and [SECTION] of [ACT]. Considering the entire circumstances and evidence on record, it stands duly proved that the cheques in question which are CW1/A & Ex. CW1/B were not issued and drawn in discharge of liability or a legally recoverable debt of the accused. Thus on this ground alone the accused deserves acquittal and it would not be fruitful to discuss other aspects of [SECTION] [PRECEDENT] page no. 12 of Pages 12 Act.
19. In view of the aforesaid discussion, accused Sh. [ENTITY], S/o Sh. [ENTITY], R/o H.No. 352/1, Teliwara, Shahdara, Delhi32 stands acquitted of the offence U/[SECTION] [ACT] in respect of the cheques bearing no. 409711 & 409712.
Announced in the open court today i.e. 29.06.2013 ([ENTITY]) [CASE NUMBER] Containing 12 pages all signed by the presiding officer.
([ENTITY]) [CASE NUMBER]