IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE([ACT])-03 (SOUTH):SAKET COURTS:NEW DELHI CC NO: 468974/2016 [ENTITY] S/o Late SK Abul Basar R/o 33/2, 2nd Floor, West Patel Nagar, New Delhi - 110008 Complainant Versus Mr. [ENTITY] (Prop. Superfast Cargo Carriers) S/o Late Sh.Balwant Sharma Vill. Beejna, Teh. Charki Dadri, Distt. Bhiwani, Haryana 2nd Address: H. No.-247, 1st Floor, JJ Colony, Wazirpur, Near Akara, New Delhi - 52 3rd Address: P. No.-747, Main Delhi Rohtak Road, TPT Complex, Tikri Kalan, Delhi - 41 Accused Offence Complained of or proved : Under section 138 of [ACT] Plea of the Accused : Pleaded not guilty Date of filing : 24.12.2010 Date of Institution : 13.01.2011 Date of reserving judgment/order : 11.07.2018 Final Order/Judgment : Acquitted [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 [CASE NUMBER] Page 1 of 19 Date of pronouncement : 16.07.2018 JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. By this Judgment, I will dispose of the present complaint under [SECTION] of the [ACT] filed by the complainant against accused on account of dishonour of cheque bearing number 277861 dated 16.09.2010 for a sum of Rs. 74,000/-
drawn on Andhra Bank, 1664-Bahadurgarh Branch, Dayanand Nagar, Opp. Thana Sadar, Bahadurgarh-124507, in favour of complainant (hereinafter referred to as the cheque in question).
2. Brief case of the complainant as per complaint is that complainant had booked the services of the accused for transportation of a Hyundai Santro Car bearing Registration No. OR-04F-6575 from Cuttak to New Delhi on 18.06.2010 against receipt dated 18.06.2010 and accused promised the delivery of car at New Delhi on 23.06.2010 while fixing the value of the car at Rs.3 lacs and transportation charges at Rs.7500/- which were paid by the complainant to the accused at the time of booking, but accused had failed to deliver the said Car despite repeated assurances. It is [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 further the case of complainant that on 29.06.2010, one of the representatives of the accused handed over a copy of FIR dated 26.06.2010 to him, when he came to know that the said car was stolen from near Delhi Border. Since the accused failed to settle the issue with the complainant, complainant lodged a police complaint against accused at PS Patel Nagar on 10.07.2010, whereafter, accused approached him for settlement and agreed to pay the market value of the car i.e. Rs. 3,00,000/- alongwith a further sum of Rs. 1,04,000/- to the complainant for taxi hire, damages, mental and physical harassment caused to complainant and his family members and in discharge of his legal obligation issued two post dated cheques bearing nos. 277859 and 277861 dated 05.08.2010 and 16.09.2010 for a sum of RS. 30,000/- and Rs. 74,000/- respectively drawn on Andhara Bank, Bahadurgarh. It is further the case of complainant that the cheque in question, on presentation, was dishonoured twice firstly on 12.10.2010 and thereafter on 12.11.2010 with remarks "Payment stopped by drawer" and since the accused had failed to make the payment of the cheque amount in question despite service/deemed service of legal notice of [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 demand dated 29.11.2010 through registered AD and UPC, he has committed the offence under [SECTION] of the [ACT].
3. Upon receipt of the complaint, cognizance of the offence was taken and the accused was summoned vide order dated 25.02.2011. Accused appeared in the court and was admitted to bail. Thereafter, a separate notice explaining accusations to the accused under [SECTION] of the [ACT] was served upon him in terms of [SECTION] [ACT] on 14.12.2011. Accused did not plead guilty and claimed trial. Simultaneously the defence disclosed by the accused was recorded by the court, wherein, accused had stated that the cheque in question was issued for security purpose and it was mentioned on rear side of the cheque that the same will not be presented in the bank for encashment. Thereafter, on a separate application of the accused under [SECTION] of [ACT], he was allowed to cross examine the complainant vide order dated 25.04.2018.
4. It is significant to note that in terms of judgment of Hon'ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 Thakore (2010) 3 SCC 83 and Hon'ble Delhi High Court in [PRECEDENT], the pre- summoning evidence by way of affidavit Ex. CW-1 shall be read as post-summoning evidence of the complainant. Even otherwise, the said affidavit had been adopted by the complainant in his post- summoning evidence. In the aforesaid affidavit, complainant had relied upon the following documents:
Ex. CW-1/1 & Ex.CW-1/2: Original cheque return memos. Ex.CW-1/3 : Original Cheque in question Ex.CW-1/4 : Legal Notice of demand dated 29.11.2010 Ex.CW-1/5 to Ex.CW-1/7 : Postal receipts regarding dispatch of legal notice.
Ex. CW-1/8: UPC receipt regarding dispatch of legal notice. Ex.CW-1/9: Returned envelope containing legal notice of demanded Ex.CW-1/10: Acknowledgement card CW-1 was duly cross-examined by Counsel for accused. During his cross-examination, CW-1 has also tendered the following documents:
Ex.CW-1/11: Booking Receipt dated 18.06.2010 Ex.CW-1/12: Copy of statement of bank account of complainant. Ex.CW-1/13 : Copy of FIR dated 26.06.2010 [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 Mark CW-1/A: Copy of police complaint dated 10.07.2010
5. Thereafter, on a separate statement of complainant, CE was closed vide order dated 14.05.2018. Statement of accused under [SECTION] [ACT] was recorded on 25.05.2018, putting entire incriminating evidence against him wherein he has substantially reiterated the defence taken by him during his plea u/[SECTION] [ACT] Initially the accused chose to lead evidence in his defence, however, subsequently on a separate statement of accused, DE was closed vide order dated 07.06.2018 without examination of any witness in his defence by him. Final arguments on behalf of the accused were thereafter heard on 26.06.2018, whereas, none has appeared on behalf of the complainant to advance final arguments despite repeated opportunities and hence opportunity of complainant to advance final arguments was finally closed vide order dated 11.07.2018.
6. It is submitted by counsel for accused that the complainant has failed to prove his case by leading any cogent evidence and in fact the presumption, if any, arising in favour of complainant in terms of [SECTION] and [SECTION] of [ACT] has been successfully rebutted by [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 the accused by way of cross examination of complainant. He submits that though according to the complainant the cehque in quetsion alongwith another cheque of Rs. 30,000/- was issued by accused in favour of complainant in pursuance of a settlement consequent upon complainant lodging a police complaint against the accused, however, admittedly no written agreement was executed between the parties. So far as oral agreement between the parties is concerned, according to him, the vesrion of the complainant regarding the same is fraught with contradictions. He submits that a bare perusal of the cross-examination of CW-1 in the light of material available on record and defence sought to be raised by the accused would show that complainant is not a reliable witness and his testimony cannot form the basis of conviction of the accused for the offence under [SECTION] of the [ACT].
7. He points out that though during his cross-examination dated 11.05.2018, complainant has deposed that the police complaint at PS Patel Nagar was lodged by him against the accused prior to registeration of FIR by the accused regarding theft of the car i.e. on 23/24.06.2010, however, a bare perusal of the document mark CW- [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 1/A shows that the said complaint bears the date of receip at PS Patel Nagar as 10.07.2010. Besides, according to him, there was no occasion for the acused to mention the value of the vehicle as Rs. 3,00,000/- in the booking receipt Ex. CW-1/11, when the car in question was not available to him for inspection at Delhi on the date of issuance of booking receipt Ex. CW-1/11, more so, when the insured value of the vehicle at the time of issuance of receipt was admittedly Rs. 1,80,000/-. He submits that the complainant has failed to produce the copy of insurance policy on record. The aforesaid facts, according to him, are sufficient to raise raise serious doubts about the testimony of complainant that the amount of Rs. 3,00,000/- as value of the car was mentioned in the receipt by the accused.
8. It is further submitts by counsel for accused that the complainant in the first instance had denied the suggestion that there was any endorsement on the back side of cheque in question Ex. CW-1/3 that the said cheque was being issued by accused only for security purpose and the same was not to be presented by the complainant and it was only after he was confronted with the said endorsement [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 that he admitted regarding the said endorsement being present on the back side of the cheque at the time of handing over of said cheque by the accused to the complainant. However, according to him, the complainant had tried to mislead the court by concocting a new story of his raising objection to the said endorsement and assuance given on behalf of the accused.
9. He submits that though the complainant during his cross examination dated 11.05.2018 has alleged that as per the agreement, complainant asked the accused to take all relevant papers and to get the insurance claim from the insurance company, however, according to him, admittedly no authority letter was issued by the complainant in favour of accused to pursue the claim with insurance company on behalf of the complainant. In the absence of any such authority letter, according to him, the entire case of the complainant as to the alleged oral agreement is rendered improbable. He submits that contrary to his plea in the complaint, complainant has taken an altogether new stand during his cross examination dated 11.05.2018 that the cheques were issued by the accused for meeting the expenses incurred by the [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 complainant in pursuing the insurance claim and though during his cross examination dated 11.05.2018, CW-1 has alleged that he had incurred expenses to the extent of Rs.1,20,000/- approximately during processing of insurance claim, however, it is unbelievable that a person would spent a sum of Rs.1,20,000/- for a claim of Rs.1,35,000/- to Rs.1,40,000/-.
10.All the aforesaid facts, according to him, renders the defence of the accused reasonably probable that the cheque of Rs.30,000/- was issued by him in favour of complainant for meeting the shortfall in the claim amount to be received by the complainant from the insurance company as against the insured value of the vehicle as usually the insurance company settles the claim at 75-80% of the insured value. The aforesaid facts, according to him, further renders the defence of accused regarding issuance of cheque in question by him as security for meeting the contingency of complainant suffering any loss incase of denial of his claim by the insurance company. Since, according to him, admittedly the insurance company had made a payment of Rs.1,35,000/- to Rs.1,40,000/- to the complainant and the accused had made a [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 payment of Rs.30,000/- to one Mr.[ENTITY] who was employed in the same office where the complainant was working on the instructions of complainant, he was not owing any liability to the extent of Rs.74,000/- as on the date of presentation of the cheque in question. He has thus prayed for acquittal ofhte accused from the charge u/[SECTION] of [ACT]. In support of his aforesaid submissions, counsel for accused has relied upon the following judgments:
(i) [ENTITY] v. Dattatraya G. Hegde, (2008) 4 SCC 54
(ii) John K. Abraham Vs. Simon C. Abraham & Anr. 2014 (1) Criminal Court Cases 058 (SC)
(iii) [PRECEDENT] 2014 (2) Criminal Court Cases 370 (Delhi)
(iv) Kulvinder Singh Vs. Kafeel Ahmed 2013 Law Suit (Del) 2488
(v) [PRECEDENT].
(vi) Sudhir Kumar Bhalla v. Jagdish Chand & Ors. (2008)7 SCC
(vii)John K John Vs. Tom Verghese & Anr. AIR 2008 SC 278
(viii) Devender Kumar Vs. Khem Chand 2015 (4) JCC (NI) 274
(ix) [PRECEDENT]
11.I have heard the submissions made on behalf of the accused and have also perused the record. I have also carefully gone through the judgments relied upon by Ld. Counsel for the accused. Before [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles, relevant for adjudication of complaint under [SECTION] of [ACT], laid down in several judgments of Hon'ble Supreme Court of India and of various High Court including our own High Court. In my considered opinion, 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 by him for valid consideration and in discharge of legally enforceable debt or liability towards the complainant. Though a Division Bench of Hon'ble Supreme Court of India in [ENTITY] v. Dattatraya G. Hegde, (2008) 4 SCC 54 has observed that the presumption under [SECTION] of the [ACT] does not go to the extent of presuming the existence of a legally recoverable debt, however in a later judgment titled as [ENTITY] v. Sri Mohan, (2010) 11 SCC 441 a larger Bench of Hon'ble Supreme Court has expressed its disagreement with the aforesaid view holding that there is also an initial presumption regarding the existence of legally recoverable [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 liability under [SECTION] of the [ACT]. Further, it has been held that 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 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 fact 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 [PRECEDENT], [ENTITY]'s case (Supra) and [ENTITY] v. Sri Mohan's case (Supra). It is further well settled in the aforesaid judgments that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts. It is significant to note that in none of the judgments relied upon by Ld. Counsel for accused any principle contrary to the principles of law reproduced hereinabove has been laid down by Hon'ble Supreme Court and Hon'ble Delhi High [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 Court except to the extent that the judgment of Hon'ble Supreme Court in [ENTITY]'s case (Supra) had been partly over ruled by a larger bench of Hon'ble Supreme Court in [ENTITY]'s case (Supra).
12.Now let us examine the facts of case in hand in the light of aforesaid legal principles. In the case in hand, accused has not disputed his signatures on the cheque in question at any stage of the trial and hence the aforesaid admission would give rise to a twofold presumption in favour of the complainant i.e. not only regarding existence of legally enforceable liability of accused towards the complainant but also regarding issuance of cheque in question by accused in favour of complainant in discharge of the aforesaid liability. Indisputably, the said presumption is rebuttable in nature and the accused could have rebutted the said presumption even without stepping into the witness box through cross- examination of complainant's witnesses while relying upon the material brought on record by the complainant.
13.In the case in hand, the complainant has alleged that the cheque in question had been issued by the accused in pursuance to an oral [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 agreement in part discharge of his liability on account of Taxi Hire, Damages and Mental and Physical harassment caused to the complainant for processing of insurance claim on account of loss of vehicle of the complainant by the accused during transit from Orissa to Delhi. Admittedly, no written agreement had been executed between the parties in this regard. A bare perusal of the cheque Ex.CW-1/3 shows that on the back side of the aforesaid cheque there is a categorical endorsement in the handwriting of accused which reads as under:-
"This cheque as per a security deposit cheque no.277861, Rs.74,000/- Seventy Four Thousand Only. Yeh cheque bank me nahi dala jaye.
For superfast cargo carrier sd-
Proprietor"
14.When during cross examination dated 11.05.2018, a suggestion was given by counsel for accused to CW-1 that an endorsement regarding the cheque having been issued as security had been made by the accused on the back side of the cheque, the same was denied by the complainant and it was only after he was confronted with [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 the cheque in question, that he had admitted that the said endorsement was there at the time of handing over of cheque by employee of accused to him. When confronted with the question as to why he had not raised any objection to the aforesaid endorsement at the time of receipt of the cheque, if the cheque in question had been issued by accused in discharge of his existing liability, CW-1 had tried to take a stand that though he objected to the same,however, employee of the accused assured him that there will be no problem in encashment of the cheque due to the said endorsement. It is significant to note that in answer to the first question of counsel for accused, CW-1 has deposed that he had done CA Inter and as such it is highly unbelievable that that complainant would have accepted the cheque in question from the accused with the endorsement at point A to A1 on the back side of the cheque had the cheque been issued by issued in discharge of any liability and not as security. The complainant has failed to explain as to why he had accepted the cheque with an endorsement at point A to A1, if the cheque in question was issued by accused under the circumstances alleged by him. In view of the aforesaid [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 facts and circumstances, defence sought to be raised by the accused regarding issuance of cheque by him as security to ensure that the complainant is compensated to the extent of insured value of the vehicle in case he is unable to get the compensation from the insurance company for the stolen vehicle becomes reasonably probable, particularly, in view of the fact that the complainant has admittedly not initiated any proceedings against the accused for recovery of balance amount of Rs.3,30,000/- as per the alleged oral agreement in pursuance to which the cheque in question was allegedly issued by the accused in favour of complainant. The complaint is conspicuously silent about the fate of another cheque dated 05.08.2010 of Rs.30,000/- allegedly issued by accused in favour of complainant alongwith the cheque in question.
15.The complainant has failed to produce any document in support of the alleged expenses of Rs.1,20,000/- incurred by him in pursuing the claim with the insurance company for reimbursement of which the cheque in question had allegedly been issued by the accused. Even otherwise, it is highly improbable that a person will spend Rs.1,20,000/- to pursue the claim of Rs.1,35,000/- to [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 Rs.1,40,000/-. There appears to be no substance in the plea of the complainant that accused had agreed to pay the market value of the car of Rs.3 lacs in addition to the damages of Rs.1,04,000/- in view of the fact that admittedly, the insured value of the vehicle was only Rs.1,80,000/- in as much as no prudent person will agree to pay a sum of Rs.4,04,000/- for loss of vehicle insured value of which was Rs.1,80,000/- only. The aforesaid conclusion of the court is further fortified from the fact that the complainant has not initiated any proceedings for recovery of the balance amount of Rs.3,30,000/- as per the oral agreement against the accused.
16. In view of the aforesaid discussion, in my considered opinion, the complainant is not a reliable witness and on the basis of his sole testimony, the case of the complainant as set up in the complaint cannot be taken to have been proved much less proved beyond reasonable doubts. Accused has been able to raise serious doubts about the case set up by the complainant on the basis of cross examination of complainant while relying upon the documents relied upon by the complainant particularly the endorsement made on the back side of the cheque in question. Thus, in my considered [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018 opinion, accused has successfully rebutted the presumption arising in favour of complainant in terms of [SECTION] and [SECTION] of [ACT] on the touchstone of preponderance of probabilities and the complainant has failed to prove beyond reasonable doubts that the cheque in question was issued by the accused in discharge of his legally enforceable liability.
17.Accused is accordingly acquitted of the charge under [SECTION] of the [ACT] amended upto date).
18.Ordered accordingly.
19.Accused has already furnished PB and SB in sum of Rs.5000/- each in terms of provisions of [SECTION] of [ACT] and the same have been accepted and shall remain in force for a period of six months from today.
Announced in the Open Court on this 16th day of July, 2018. This Judgment consists of 19 signed pages.
([ENTITY]) Metropolitan Magistrate-03 ([ACT]) (South) Saket Courts, New Delhi/16.07.2018 [ENTITY] Vs. [ENTITY] Judgment dated 16.07.2018