1 IN THE COURT OF [ENTITY], METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA COURTS: SHAHDARA, DELHI. JUDGMENT U/[SECTION] [ACT] a. Serial No. of the case : 261/11 b. Date of the commission of the offence : 08/06/2011 c. Name of the Complainant : [ENTITY] d. Name of Accused person and his parentage: Smt. [ENTITY], and residence W/o Late Sh. [ENTITY], R/o A156, Chander Vihar, Mandawali, Fazalpur, Delhi92. e. Offence complained of : Dishonouring of cheque for "Account closed". f. Plea of the Accused and his examination (if any): Not guilty because no loan was taken. g. Final Order : Held not guilty. Acquitted. h. Order reserved on : 17.10.2014. i. Order pronounced on : 27.10.2014. Page No. 1 To 10 [ENTITY] Vs. Smt. [ENTITY] 2 Brief reasons for decision: 1. Brief facts necessary for the disposal of this case are that on 27.06.2011, a complaint was filed by the Complainant under [SECTION] of the [ACT] against Smt. [ENTITY] (hereinafter referred to as the Accused) whereby cognizance was taken for the offence under [SECTION] of the [ACT] on 28.06.2011 and the Accused was summoned before this Court. 2. It has been alleged in the Complaint and the Evidence by way Affidavit (Ex. CW1/A) that the Complainant and the Accused had friendly relations and on demand of the Accused on account of some dire necessity in December 2009, the Complainant advanced a sum of Rs.5,00,000/ as friendly loan to the Accused for a period of One year. It is further stated that after one year in discharge of her liability, the Accused issued a postdated cheque bearing no. 985810 (Ex. CW1/1) dated 04.04.2011, drawn on Punjab National Bank, Patparganj Branch, Delhi110092, for a sum of Rs. 5,00,000/. The cheque in question was presented for payment by the Complainant with his Banker and the same was dishonoured on 12.05.2011 on the ground Account Closed (vide return memo Ex. CW1/2). It is further stated that having no alternative, the Complainant got legal notice dt. 23.05.2011 (Ex. CW1/3) issued upon the accused by Registered Post as well as Courier of which respective receipts are Ex. CW1/4 and Ex. CW1/5. It is also stated that while the said legal notice was Page No. 2 To 10 [ENTITY] Vs. Smt. [ENTITY] 3 duly served through courier, the Registered Post was received back unserved (Ex. CW1/6) with the report of refusal. It is thereafter stated that despite due service of notice, neither any reply nor any payment against the cheque in question has been received. Hence, the present complaint has been filed. 3. Notice of accusation was served upon the accused under [SECTION] [ACT] on 18.11.2011, to which she pleaded not guilty and claimed trial. Plea of Defence of the accused was also recorded wherein the Accused admitted her signature on the cheque in question but denied filling up any of the contents on the cheque in question. She also denied the loan transaction with the Complainant. Accused also stated that she had handed over two cheques to her tenant namely [ENTITY], the father in law of the Complainant, for payment of electricity and water bills through him. Accused also admitted to receipt of the legal demand notice but stated that she did not reply to the same. She added that above mentioned [ENTITY] had left her premises locked since October 2010 and she has been trying to trace him. 4. To prove his case, the Complainant adopted his presummoning evidence as his postsummoning evidence and examined himself as CW1. On an application of the accused under [SECTION] of the [ACT], the accused was given an opportunity to crossexamine the Complainant. Thereafter, CE was closed on 15.05.2012. 5. Statement of the accused had been recorded under [SECTION] [ACT] on 06.08.2012, wherein the accused reiterated her stand taken in her Page No. 3 To 10 [ENTITY] Vs. Smt. [ENTITY] 4 plea of defence with some additions. She stated that she had handed over two signed blank cheques including cheque in question to her tenant [ENTITY] in the year 2010 for depositing electricity bills. However, he did not deposit the same and resultantly her electricity connection got disconnected. Due to this reason she also had a verbal spat with said [ENTITY] and when she demanded her cheques back from him, he did not return the same to her and pretended that they had been torn. She has further stated that in November 2010, he left her premises without even paying the due rent. She further added that her other blank cheque was handed over by said [ENTITY] to some [ENTITY] who has filed another case under [SECTION], [ACT], against her. She stated that she had rarely seen the complainant and never had any money transaction with him ever. 6. In order to prove her innocence, the accused examined two witnesses i.e. DW1, Smt. [ENTITY] and DW2, Accused herself. DW2 got photocopies of her passbook running into 7 pages exhibited as Ex. DW2/X. 7. I have heard the arguments of both the parties at length and have gone through the entire record carefully. 8. Since, the signature on the cheque in question have been admitted but the handing over of the cheque by the Accused to the Complainant has been denied, it needs to be carefully examined whether the Accused has been able to demolish the case put forth by the Complainant or not. However, presumption under [SECTION] of the [ACT] arises in favour of the Complainant and against Page No. 4 To 10 [ENTITY] Vs. Smt. [ENTITY] 5 the Accused. 9. On perusal of the record, it is revealed that neither the complaint nor the affidavit of the complainant mentions the date when the entire transaction is stated to have been entered into between the parties. The complaint just vaguely mentions December, 2009 as the time period during which the transaction in question was executed whereby money was demanded by the Accused from the complainant and the same was advanced to her by the complainant. Moreover, despite the transaction involving a huge sum of Rs. 5,00,000/ it is surprising that neither any written document has been executed by the Complainant while advancing the loan nor there is any eye witness to the transaction. Also, no security whatsoever has been taken by the Complainant while advancing the loan. Hence, the conduct of the Complainant becomes doubtful as the same does not reflect the conduct of reasonable prudent man. It is relevant here to take note of the decision of the Hon'ble Apex Court in the case titled as [PRECEDENT] wherein the Apex Court has observed as under: 10 The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of act that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be
posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be Page No. 5 To 10 [ENTITY] Vs. Smt. [ENTITY] absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay installments in respect to the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of a proof cast on him under [SECTION] of the Act, no exception thereto can be taken.
10. It is also pertinent to note that the Complainant has been unable to properly explain the source of the amount of Rs.5,00,000/ advanced as loan. In his crossexamination, the Complainant has stated that he had arranged the cash amount of Rs.5,00,000/ by taking Rs.3,00,000/ from his mother and pooling remaining amount of Rs.2,00,000/ from his own funds. However, it may be noted that despite his mother being an important witness to support his case as she had sponsored more than 50% of the loan amount, the complainant has preferred not to bring his mother as a witness. In fact, the name of the mother of the Complainant does not even find mention in the list of witnesses. Moreover, as per his own admission the monthly income of the Complainant was Rs.10,000/ only in the year 2009. Therefore, again serious questions are raised on his credibility with respect to the source of the loan advanced from his own funds.
11. Moving further, the Complainant has stated that he had advanced loan without interest on account of his friendly relations with the Accused. The complainant has however stated in his crossexamination that he does not know Page No. 6 To 10 [ENTITY] Vs. Smt. [ENTITY] the exact address of the Accused nor any details about the family members of the Accused and that he met the Accused for the first time on his wedding day in February, 2009. It is surprising that despite being unaware about the details of the Accused a cash loan of Rs.5,00,000/ was advanced by the Complainant to the Accused without even executing any written document and that too in absence of any eyewitness. Moreover, the alleged friendly relations of the Complainant and the Accused also do not appear to be strong enough as they met for the first time in February, 2009 and the loan was advanced in December, 2009, i.e. within a few months of their introduction at a marriage function. Therefore, giving a financial help of Rs.5,00,000/ in cash by the Complainant to the Accused seems doubtful. Also, touching once again upon the conduct of a prudent man, it is questionable that the loan was advanced by the Complainant to the Accused with sufficient knowledge that the Accused is an unemployed widow having no independent source of income and therefore, not having the capacity to easily pay back the loan amount.
12. Moving further, on examining the testimony of the Accused as a defence witness as well as her plea of defence and statement under [SECTION] [ACT], consistent defence has been taken by the Accused by maintaining that she had handed over blank signed cheque in question to her tenant i.e. Sh. [ENTITY], fatherinlaw of the Complainant for depositing of electricity bills and that the same has been misused by him. The fact that the fatherinlaw of the Complainant was indeed the tenant of the Accused has also Page No. 7 To 10 [ENTITY] Vs. Smt. [ENTITY] been stated by the Complainant in his crossexamination as well as by DW1 in her examination in chief. Even though DW1 has stated that the Accused used to hand over signed blank cheques to said [ENTITY] for depositing of bills, however, none of the cheques were ever handed over in her presence and hence, on account of being hearsay the value of the testimony of DW1 becomes diminished. Nevertheless, the Accused has exhibited copy of her passbook Ex. DW2/X whereby it is reflected that electricity bills in the past had indeed been deposited through cheques.
13. Further, the Accused has testified that she closed her bank account with PNB as her tenant [ENTITY] had threatened her of dire consequences and she anticipated misuse of her cheques. Nonetheless, it is also pertinent to note that despite her averment that her tenant left her premises without payment of rent, the Accused has not taken any legal action against her tenant for alleged misuse of the cheque in question.
14. As a sum total of the above discussion, it comes out that even though the Accused has not been able to prove her defence, but she has been able to create sufficient doubt in the reliability of the averments made by the Complainant in his Complaint whereby the transaction itself seems to be unbelievable. The fact that loan was advanced without adhering to any of the commonly used tools of the trade itself raises grave suspicion on the case of the complainant. Moreover, the Accused has been able to make her defence somewhat probable by proving that even in the past her electricity bills have Page No. 8 To 10 [ENTITY] Vs. Smt. [ENTITY] been deposited by cheques. It is an established principle of criminal jurisprudence that benefit of any doubt goes to the Accused and as far as the presumptions under the [ACT] are concerned, the same are rebuttable by the Accused by creating visible enough dents in the case of the Complainant, as has also been done in the present case.
15. At this stage, it is relevant to examine the standard of proof of defence which is required in cases under [SECTION] of [ACT]. It has been held in the recent decision of the Hon'ble Supreme Court of India in case titled as [PRECEDENT] that: We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. [SECTION] and [SECTION] of the [ACT] make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted.
16. In view of the facts and circumstances of the case, the evidence brought forth by the parties and the applicable principles of law, this court has no hesitation in holding that even though signature on the cheque in question had been admitted by the Accused the presumptions in law as under [ACT] have Page No. 9 To 10 [ENTITY] Vs. Smt. [ENTITY] been successfully rebutted by her and hence, the Accused in this case deserves to be freed from all the charges leveled against her by the Complainant.
17. Therefore, the Accused is hereby acquitted of the offence under [SECTION] of [ACT].
Announced in the open court ([ENTITY]) on 27 Day of October, 2014. th MM/KKD/Delhi This judgment contains 10 signed pages. Page No. 10 To 10 [ENTITY] Vs. Smt. [ENTITY]