IN THE COURT OF SH. ASHU GARG, Judge, Small Cause Court - cum- Addl. Senior Civil Judge - cum- Guardian Judge - cum - Metropolitan Magistrate (New Delhi), Patiala House Courts, New Delhi CC No. 14/09/12 Unique Case ID No. 02403R0486102009 Date of Institution: 13.05.2009 Date of reserving judgement: 21.05.2015 Date of pronouncement: 08.07.2015 In re: Sh. [ENTITY] S/o. Sh. [ENTITY] R/o. 179, Ground Floor, Sant Nagar, East of Kailash, New Delhi-65 [PRECEDENT] [ENTITY] S/o. Sh. [ENTITY] R/o. M-57, Kalkaji, New Delhi Accused JUDGMENT:
1.The present is a complaint filed under [SECTION] of the [ACT] with respect to a cheque no. 321290 dated 30.01.2009, for a sum of Rs. 10,00,000/ drawn on ICICI Bank, Lajpat Nagar, New Delhi.
2.According to the complainant, the accused was having good friendly relations with him and used to take friendly loans for short period when needed, which he used to refund in short periods. In the middle of January 2009, a loan of Rs. 10,00,000/ was taken by the accused to start trading of poultry farming which was to be repaid by the end of January 2009. To prove his bona fide to return the amount, accused issued a postdated cheque (cheque in question) with the assurance that the same would be honoured when presented on due date. However, the cheque returned unpaid when presented, with the remarks "funds insufficient" vide memo dated 09.03.2009. Thereafter, legal demand notice dated 26.03.2009 was issued to the accused but the same returned unclaimed / refused. A copy of the notice was also sent to the wife of the accused and the same was served. When the payment was not made despite expiry of statutory period of 15 days from such service / deemed service of the demand notice, the complaint was filed in the court.
3.Based on the presummoning evidence, the court summoned the accused vide order dated 05.06.2009. The accused appeared and notice of accusation under [SECTION] [ACT] for commission of offence under [SECTION] [ACT] was framed against him vide order dated 12.08.2010, to which he pleaded not guilty and claimed trial. In terms of the judgement titled as [PRECEDENT], defence of the accused was recorded in writing. The accused admitted his signatures on the cheque under [SECTION] [ACT] but denied receipt of the legal notice. While disclosing his defence, he stated that he never took any money from the complainant and that he had been falsely implicated without any liability to pay. He took stand he had taken money from one Sh. [ENTITY] which he had already returned with interest at the rate of 5% per month. He also stated that his bank statement could be seen to prove payment of such money to the said Sh. [ENTITY], who he stated to be a money lender who used to take blank cheques as security before giving loan. He stated that the complainant and his maternal uncle Sh. [ENTITY] had misappropriated the cheque which was originally taken by the Sh. [ENTITY] as security.
4.The accused moved an application under [SECTION] [ACT] which was allowed on 07.12.2010 itself and the CW1 was directed to be recalled for crossexamination.
5.At the trial, the complainant examined himself as CW1. He tendered his affidavit Ex. CW1/1 and reiterated the contents of the complaint and relied upon the necessary documents including the cheque in question Ex. CW1/A, cheque returning memo Ex. CW1/B, legal notice Ex. CW1/C, and the postal receipts / unserved envelopes / courier receipts Ex. CW1/D to Ex. CW1/I. During crossexamination, he stated that no loan agreement was executed between the parties, and that he was not having any money lending licence. He denied that no notice was sent to the accused. Though he produced copies of income tax returns for the relevant period yet he stated that his income was more than that shown in the same. He denied that he was not capable to give Rs. 10,00,000/ as loan which was not reflected in his income tax returns. He however stated that the loan amount was borrowed from his mother and father and some amount was arranged against his property.
6.The complainant also examined his uncle Sh. [ENTITY] as CW2, who tendered his affidavit Ex. CW2/1 thereby corroborating the version of the complainant. He deposed that the loan of Rs. 10,00,000/ was given in the middle of January 2009 (12.01.2009 to 18.01.2009) in his presence and that the cheque in question was also given to the complainant in his presence. During crossexamination, he denied that the cheque in question was given to Sh. [ENTITY] or that the accused did not know the complainant. He reaffirmed that the loan amount was given to the accused and the cheque was given to the complainant in his presence. He denied that no such transaction took place because no document was executed. When asked, he stated that Rs. 3,00,000/ were given on 12.01.2009, Rs. 2,00,000/ were given on 14.01.2009, Rs. 2,50,000/ were given on 16.01.2009 and Rs. 2,50,000/ were given on 18.01.2009.
7.Statement of the accused under [SECTION] [ACT] was recorded on 21.11.2013 wherein he denied the allegations and pleaded innocence. Though he admitted the issuance of cheque in question but stated that the same was given to Sh. [ENTITY] and not to the complainant. He admitted the factum of dishonour of the cheque, though stated that he had already made the payments from time to time to Sh. [ENTITY]. He denied the receipt of demand notice and stated that Sh. [ENTITY] had handed over the cheque to the complainant who filed the case against him. He chose to lead evidence in defence.
8.The accused examined himself as DW1 as the only defence witness when his application under [SECTION] [ACT] was allowed on 09.07.2014. He deposed that he had taken loan of Rs. 5,00,000/ from Sh. [ENTITY] in 2005/2006 and the cheque in question had been taken as blank in the year 2006/2007. He stated that he was making payments to the said Sh. [ENTITY] time to time and the payments made through cheques were reflected in his bank record as well, though he had no proof of making cash payment. He further stated that when he had stopped paying interest to the said Sh. [ENTITY] due to losses in his poultry farm business, the said Sh. [ENTITY] gave the cheque to the complainant who filed the complaint against him. He stated that the legal notice had been sent at the address of his in laws. During crossexamination, he could not tell where was he staying in Delhi on 25.03.2010. He stated that he had seen the complainant in the year 2006 as he was staying with Sh. [ENTITY] and Sh. [ENTITY], and accepted that he might have called the complainant from his mobile on several occasions. He came to know that his cheque had been given to the complainant through one Sh. [ENTITY] who had informed his wife. However, he never took any action against the said Sh. [ENTITY] or gave stop payment instructions, on the ground that he did not expect that his cheque would be misused.
9.It is in these circumstances, Ld. Counsel for the complainant has argued that he has been able to prove his case against the accused. He has primarily relied upon the presumptions of law in favour of the complainant and contended that the accused has failed to establish his defence. It is submitted that nothing is there in the crossexamination of CWs that could help the accused.
10.On the other hand, Ld. Defence Counsel has argued that the accused has been able to rebut the presumptions and that the complainant has failed to prove its case. Ld. Counsel has argued that the complainant has failed to disclose the source of arranging such a huge amount of Rs. 10,00,000/ that he gave as loan to the accused. It is submitted that no such amount was reflected even in his income tax returns or any other account books. No bank statement has been placed on record and no family members or friends have been examined to show as to from where such amount was arranged. It is thus contended that the money involved is unaccounted money which cannot be recovered. It is then submitted that there is no proof of service of legal notice upon the accused personally. It is further argued that the complainant used to lend money despite the fact that he was not having any money lending licence and therefore, any such transaction, if so made, was illegal. Relying upon the judgement titled as [PRECEDENT], it is argued that there is no presumption of existence of legally recoverable debt and such a fact has to be proved by the complainant only. It is lastly pointed out that the complainant has failed to examine the main witness Sh. [ENTITY] to whom the accused was making payments, despite the fact that the name of the said Sh. [ENTITY] was mentioned in the list of witnesses filed by the complainant.
11.I have heard the arguments advanced by respective Ld. Counsel for the rival sides and have carefully perused the material available on record.
12.The law with respect to the offences punishable under [SECTION] of the Act has been well laid down by the Hon'ble Supreme Court of India, in the precedent titled as [PRECEDENT], wherein it has been held that:
"The accused in a trial under [SECTION] of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. 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 non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in [SECTION] of the [ACT] to rebut the presumptions arising under [SECTION] and [SECTION] of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under [SECTION] and [SECTION] of the Act will not again come to the complainant's rescue".
13.The Hon'ble Court had reiterated its earlier view so laid down in case titled as [PRECEDENT].
14.Keeping these principles in mind, it is seen that the accused is not disputing the fact that the cheque in question was drawn by him on a bank account maintained by him. He also has admitted and never denied that the cheque in question bears his signatures. It is nowhere his defence that he is not the signatory of the cheque or that his signatures had been forged or that the same was never drawn on his bank account. The accused has however tried to question the genuineness of the cheque by stating that all other contents thereupon, including the date, the name of the payee and the amount, appear in a different handwriting.
15.Well, there is no rule of law that requires the contents of a cheque to be filled by the signatory only. If there is some difference in the colour of ink or handwriting in the body of the cheque as compared to that of the signatory, that would not by itself render the cheque invalid. It is well settled that it is the signature on the cheque that is of utmost importance and if a drawer issues a cheque by leaving some of its contents blank and hands it over to another, he gives an implied authority to that person to fill the remaining contents as per his instructions. No person can be allowed to question the validity of a cheque signed by him merely on the ground that some or all other contents of the cheque are not in his handwriting. Therefore, difference in handwriting in the contents of the cheque would not negate the validity of the cheque of its own.
16.The accused has also not questioned the factum of the dishonour of the cheque due to insufficiency of funds in his bank account. He has not questioned the genuineness of the cheque returning memo prepared by the bank in ordinary process of banking business. It is not his case that the cheque returning memo is false or forged or not depicting the correct reason. It is nowhere his stand that the cheque was not so dishonoured or was dishonoured due to any reason other than that mentioned on the cheque returning memo. It is also not his defence that the funds in his bank account were otherwise sufficient to honour the cheque in question.
17.Moving ahead, the accused has denied the receipt of legal notice. He maintained this stand from the initial stage of the case till end. According to the complaint, the notice dated 26.03.2010 Ex. CW1/C was sent to the accused at his address Flat No. 39A, B12A, Dhaulgiri Apartments, Sector34, [ENTITY], and a copy of this notice was also sent to the accused through his wife Ms. [ENTITY] at M57, Kalkaji, New Delhi 110019, a fact also mentioned in the body of the legal notice itself. The complainant has placed on record the postal receipts Ex. CW1/D dated 26.03.2009 showing dispatch of the legal notice through registered post. However, the postal envelope Ex. CW1/E returned with the remarks "informed on 27.03.2009" and "unclaimed on 04.06.2009". The legal notice was sent through courier vide courier receipt Ex. CW1/F dated 26.03.2009 but it returned with the remarks "refused to accept on 27.03.2009" vide envelope Ex. CW1/I". The notice was sent to the accused at the address of his wife at Kalkaji through courier receipt Ex. CW1/G and it was duly served vide counterreceipt Ex. CW1/H showing that it was received by one Mr. [ENTITY]. In view of this position, the accused submits that he was never personally served with the demand notice.
18.However, it has to be noticed that the complainant is duly protected by the presumptions under [SECTION] of the [ACT]. If the complainant is able to establish that the letter was sent through registered post at a correct and proper address, then the said letter is deemed to be served on the addressee. Similar presumption can also be invoked even with respect to the letters sent through courier or by ordinary post by invoking [SECTION] of the [ACT]. Of course, such a presumption is rebuttable in nature, but the burden would shift on to the accused to establish that he was not so served despite the notice having been sent at the correct address.
19.It is pertinent to note that that accused has nowhere disputed the correctness of the addresses at which the notices were sent. Mere bald suggestions were given to the CW1 to the effect that no notice was sent to him. However, he has failed to establish such a defence. The accused nowhere denied that the addresses as mentioned on the legal notices were his correct addresses. Even when he was under crossexamination as DW1, the accused gave evasive answers and stated that he occasionally stayed at M57, Kalkaji, New Delhi because he used to remain in field job, though admitted that his family stayed there. Therefore, as far as the Kalkaji address is concerned, there is no dispute that the same belonged to the family of the accused where he used to stay occasionally. No other address at which the accused was residing at the relevant time has been disclosed by him and no proof has been given that he was staying at some other place so as to make to impossible to serve him at this address. Merely because he used to remain in field job, that would not change his residential address where the notice was sent. Similarly, he stated that he did not remember where he was staying on 25.03.2010, that is the day when the legal notice was issued. In my considered view, such an evasive answer would not be sufficient for the accused to rebut the presumptions in favour of the complainant.
20.This is particularly when the accused further admitted that he was staying at the mentioned address of [ENTITY] from 2004/2005 to 2006/2007. Apparently, it is not his stand that he never stayed at this address or that this address was totally wrong. Once he admits that he was staying at this address for some time, it would be upon him to show as to when he had shifted to some other address and at what time, so as to establish that the notice was or could not have been served upon him. Though he stated that he never stayed at this address any time after 2007, yet he admitted that it might be possible that he was staying at this address even in 2010, when he was confronted with the vakalatnama dated 08.07.2010 Ex. DW1/C2 showing this address after he claimed that his addresses mentioned in various vakalatnamas filed on record were correct when he used to stay there from time to time. Therefore, there is no evidence led by the accused to show that he was not staying at [ENTITY] address on 26.03.2009 when the legal notice was sent. He has not disclosed as to where else he was staying on that said day if not at this address. He has not tried to prove as to who else was staying at this address if not he or his family. Thus, there is no reason why he refused to receive the letter sent to him through courier and returned the registered post envelope as unclaimed.
21.Similarly, the accused has tried to question the correctness of the address M57, Kalkaji on the ground that the shop at that address was not his and four families were staying at this address, the premises being owned by father of his fatherinlaw. Again, it is to be noted that the accused has never denied the correctness of this address as well. He has also not pointed out any infirmity in the said address so as to make service of a letter sent there impossible. No additional details have been given by the DW1 even during his statement that were required to be mentioned in this address to ensure that the letter reaches him. In any case, in view of the presumptions in favour of the complainant, the notice has to be held to be duly served or deemed to be served upon the accused.
22.It is also not disputed that the accused never gave reply to the notice or paid any money despite expiry of statutory period of fifteen days from such service or deemed service.
23.The court has to now see if there existed a legally recoverable debt or other liability towards discharge of which the cheque in question had been issued. In this regard, CW2 has corroborated the stand of the CW1 and stated that the loan amount was given to the accused in his presence on various dates and the cheque in question was also given to the complainant in his presence by the accused.
24.At this stage, it is to be noted that the law laid down by the Hon'ble Supreme Court of India in the judgement titled as [PRECEDENT], as relied upon by the accused, has been overruled on this point in the subsequent precedent titled [PRECEDENT] wherein it was held that there is a presumption of existence of legally recoverable debt as well. Therefore, once the complainant is able to establish the basic ingredients of the offence and to discharge his initial burden, the presumptions of law operate in his favour. The burden would then shift on to the accused to rebut the presumptions by raising a probable defence. Of course such presumptions can be rebutted by leading defence evidence and / or pointing out infirmities in the case of the complainant.
25.In the present case, the complainant has proved all the basic ingredients so as to invoke the presumptions of law in his favour. It is not the case where the complaint or the testimony of the complainant is totally silent as to when the loan was given, for what purpose the loan was given, by what mode it was given, in whose presence it was given and for period it was given. CW1 and CW2 corroborated each other and also the averments of the complaint which shows that the loan was given in middle of January 2009 in presence of both of them, as friendly loan, without any interest, repayable by the end of the month, for helping the accused in trading of poultry farm. The accused has also in his statement accepted that he was into poultry farm business. Therefore, such averments, coupled with the cheque in favour of the complainant, would be sufficient to say that the complainant has discharged his initial burden to invoke presumptions in his favour and now it would be for the accused to rebut the same.
26.The Ld. Defence Counsel has questioned the stand of the complainant by pointing out that the complaint and affidavit of the two witnesses do not disclose the details of the loan, as subsequently disclosed by the CW2 during his crossexamination. Well, there was no absolute necessity for the complainant or his witness to mention such details in the complaint or examinationinchief unless denied/disputed. CW1 stated that the loan was given in middle of January 2009. This fact was corroborated even by CW2 wherein he subsequently mentioned that the loan was given from 12.01.2009 to 18.01.2009. If any other details were required to be asked, that should have been asked by the defence in crossexamination. And it is seen that when such details were asked by the defence, they were duly replied by the CW2. There is nothing to show that CW2 was deposing falsely on this count.
27.The accused has questioned the alleged loan transaction, on the ground that there was no written agreement, no bank statement and no proof of payment placed on record. In this regard, it is to be understood that existence of a loan transaction would not exclusively depend upon execution of an agreement in writing. CW1 and CW2 both deposed that no such agreement was executed between the parties. Hence, no adverse inference can be drawn for non production of any such agreement. The position would have been different if any such document had been executed and the complainant had failed or omitted to produce the same. But when there was no loan agreement, such nonproduction of agreement cannot be a reason to presume that no such transaction took place.
28.Of course, the complainant has not placed on record the details or proof of arranging the money, exact quantum of such arrangement and terms of his borrowing the money from his parents. But that by itself would not be sufficient to rebut the presumptions. If the accused was genuinely questioning such loan transaction, he should have questioned the complainant on various aspects and should have asked him to disclose the source of loan amount or to produce his tax returns or bank statement or account books or any other details. Record shows that while under cross examination, he stated that he had arranged money from his parents and some amount was arranged against his property. However, the accused in his wisdom chose not to question CW-1 any further on this point. He was never asked to show the statement of his bank account from which he might have withdrawn money at relevant point of time. He was never asked to give further details of the source from which his parents had arranged the money. He was never asked to produce the documents pertaining to the property against which he arranged the money. No suggestion was given to CW1 that he had not so borrowed money from his parents or not arranged the same from his property. Thus, in the present case, it cannot be said that the complainant has not disclosed the source of money lent to the accused. When no such details were asked from the complainant by the defence, the accused cannot now claim that the complainant has failed to furnished such details. As already stated, the presumptions are operating in favour of the complainant and the burden was upon the accused to disprove the same. But by choosing not to ask any such question in this regard, the accused has failed to rebut the presumptions.
29.The court is aware of the law laid down in the judgement titled as [PRECEDENT] wherein it was held that any money which is unaccounted or illegal cannot be recovered through [SECTION] [ACT]. But the present case is different on facts from this judgement. In the present case, there is nothing on record to show that the money involved was unaccounted or flowing through some illegal transaction, whereas in the above mentioned judgement, it had been established and rather admitted that the money was unaccounted money.
30.Mere fact that no such loan amount was shown in the income tax returns, that would not nullify the case of the complainant. Income tax returns of an individual disclose only the income and not loans taken, unless such loans generate income from interest. But when loan was without interest, there was no occasion for them to be reflected in income tax returns. And such returns are not the sole criteria to determine if a person is capable to lend such amount as loan. CW1 accepted that his income was more than that shown in his tax returns. And as far as the accused is concerned, he has no locus to question such a position of the complainant. In case of any such default by the complainant on this count, the appropriate income tax authorities would be the concerned agencies who could question the complainant of this point. But the accused, who is the beneficially of a loan transaction, cannot question the capability or capacity of the complainant in arranging the money once he fails to return the same. No complaint was made to income tax authorities against the complainant for undisclosed assets or unaccounted income and no such action was taken against him. In my considered view, if any such income was concealed by the complainant, it would be a separate matter altogether for which appropriate jurisdiction would lie before the income tax authorities. That would in no manner nullify the existence of the loan transaction and the liability of a person to whom it was given.
31.The defence has also tried to raise objection to the alleged lending of any such money by the complainant, on the ground that he did not hold any money lending licence. However, even the provisions of [ACT] would not apply to the present case because there is nothing to show that the complainant was engaged in money lending business.
32.It is well settled that for an activity to be called as money lending under the said Act, there should be a systematic business of money lending which should be repetitive and continuous and the loans are granted to a large number of persons. In the case in hand, there is no evidence to the effect that the complainant had advanced loan to any person other than the accused. Further, the money so lent was not carrying any interest. Therefore, there is no material to show that the activity was in violation of [ACT].
33.Even otherwise, the [ACT] would not apply to this case. In precedent titled as [PRECEDENT], dated 08.04.2011], the Hon'ble Court held that the Act would not apply to a case when the loan was based on a cheque that is negotiable instrument.
34.In precedent titled as [PRECEDENT], dated 27.03.2014, Delhi High Court], the Hon'ble Court categorically held that "The aforesaid provision ([SECTION] of the [ACT] ) does not debar a money lender from instituting a complaint under [SECTION] of the [ACT], which is a remedy enforceable before a criminal court, and totally independent of a civil suit. The criminal liability is incurred only in case a cheque is issued in discharge of a debt or other liability, the said cheque is dishonoured for want of funds and the borrower fails to make payment of the amount of the cheque even after receipt of a notice from the lender". In that case, there was evidence on record that the complainant therein had lent money to various persons but despite that, the Hon'ble Court ruled that the criminal action under [SECTION] [ACT] was not barred. Applying the said law to this case, it would be clear that the [ACT] would not apply to this case.
35.Now coming to the defence of the accused. The stand taken by the accused is that he had taken loan of Rs. 5,00,000/ from one Sh. [ENTITY] in the year 2005/2006 for which he gave blank signed cheque in the year 2006/2007 and that the cheque was misused and given to the complainant by the said Sh. [ENTITY].
36.Needless to say that it would be for the accused to prove the assertions made by him in his defence. When the accused contends that the failure of the complainant to produce any loan agreement should mean that no loan was taken, then the same contention would hold equally good even for him as he has also failed to produce any loan agreement with respect to loan transaction with Sh. [ENTITY]. He has also not placed on record any bank record, account books or his tax returns to show that he had ever taken loan from any such [ENTITY] in the year 2005/2006. Similarly, he has not placed on record his bank statements showing that he was making payments to the said Sh. [ENTITY] from time to time, despite the fact that he stated that payments made through cheques to Sh. [ENTITY] were reflected in his bank statement. Failure on the part of the accused to produce any such bank statement showing any dealing with [ENTITY] would also draw an adverse inference against him.
37.The accused has also not placed on record any proof that the cheque in question had been issued by him in the year 2006 / 2007 and not in the year 2009 as claimed by the complainant. He never summoned any bank record showing the details as to when the cheque book was issued to him that contained the cheque leaf in question. He has not produced bank records to show as to when the cheques in the same series as that of the cheque in question had been issued by him, particularly the cheque previous to and the cheque subsequent to the cheque in question. These facts would have gone a long way to prove or disprove the stand of the accused.
38.Most importantly, when the accused has claimed that the cheque in question was given to Sh. [ENTITY], it was for him to have summoned the said Sh. [ENTITY] in his defence and prove the necessary facts. But failure or omission on the part of the accused to summon and examine the said Sh. [ENTITY] in his defence would draw an adverse inference against him. There is no justification on the part of the accused in not summoning the said witness on the ground that the name of this witness was there in the list of witnesses filed by the complainant. If the witness was a relevant witness for the accused, it was for him for summon him even if his name was cited by the complainant as his witness. There is no prohibition in law that bars the accused for summoning a witness named by the complainant in his list of witness, when the complainant has chosen not to examine him. It was for the complainant to examine those witnesses whom he found necessary to prove the facts and the complainant cannot be compelled to examine all the cited witnesses. On the same lines, the complainant could not have prevented the accused from summoning or examining a relevant witness merely by putting his name in his list of witnesses and by choosing not to examine him.
39.The said Sh. [ENTITY] was the best person who could have proved or disproved the stand of the accused. He could have established if any such cheque was given to him by the complainant, when any such cheque was given to him, for what purpose and whether he misused it by handing over the cheque to the complainant. In the absence of the said Sh. [ENTITY], a material missing link has been created in the defence raised by the accused that has dented his version. The accused has not led satisfactory evidence to show that he had taken any money from the said Sh. [ENTITY] or had paid any interest to him or had ever returned any money to him or that the said Sh. [ENTITY] was a money lender who had taken blank cheque from him or handed over the cheque to the complainant by misusing the same. Not even a suggestion was given to the complainant / CW1 that the cheque was obtained through the said Sh. [ENTITY]. No suggestion was given to CW2 that the cheque was issued by him blank or was misused.
40.The accused has failed to explain as to for what purpose the cheque in question was issued if not for the purpose as proved by the CWs. No satisfactory evidence is there on record to prove otherwise. If the accused claims that the cheque was given to Sh. [ENTITY] as blank signed, then he has not explained as to why he never asked the said Sh. [ENTITY] to return back the said cheque despite his making the payment as claimed by him. He has no justification as to why he chose not to give any stop payment instructions to his bank to prevent misuse of the cheque, despite coming to know that the cheque had been handed over to the complainant. No complaint was made against Sh. [ENTITY] or the complainant for alleged misuse of his cheque. No notice was given to said Sh. [ENTITY] asking for return of his cheque and even the notice sent by the complainant was never replied. The stand of the accused that he did not take any action or gave stop payment instructions because he never expected his cheque to be misused, does not appeal to senses. Any ordinary prudent person would immediately take action to ensure that his blank signed cheque is not misused by any unauthorized person. But the accused chose to remain mum which raises doubt on his conduct and raises question on the genuineness of his defence.
41.The accused has also not examined one Sh. [ENTITY] through whom he came to know the cheque had been given to the complainant. It is not disclosed who the said Sh. [ENTITY] is and what is his role with respect to the transaction in question.
42.It is further seen that the accused has taken contradictory pleas. During crossexamination of CW2, suggestion was given by the Ld. Defence Counsel that the accused did not know the complainant, which the CW2 categorically denied. Despite taking the stand that the accused did not know the complainant, he accepted during his crossexamination as DW1 that he had seen the complainant in the year 2006 when he was staying with Sh. [ENTITY] and Sh. [ENTITY] and went on to accept that he might have also called the complainant from his mobile on several occasions. If the accused did not know the complainant, there was no occasion for him to have called the complainant from his mobile several occasions. Therefore, the stand of the accused that the complainant was total stranger to him, stands falsified.
43.Therefore, in the totally of facts and circumstances, it can be said that the accused has not been able to establish a probable defence so as to rebut the presumptions in favour of the complainant. Mere bald averments or suggestions would not be sufficient to rebut the presumptions. Taking a stand in defence without any evidentiary support would not be sufficient to establish the defence.
44.Even the judgements relied upon the accused would not come to his rescue.
45.The judgement titled as [PRECEDENT] is distinguishable because in that case, the complainant in his crossexamination had failed to give date, month or the year when the loan was taken, coupled with the fact that the loan was not reflected in his books of accounts or ITRs. In the present case, no such books of accounts were called to be produced by the complainant, and the complainant and his witness have rather given specific dates when the loan was given and for specific amounts. Complainant also disclosed the source of loan when asked, the correctness which has not been questioned by the accused.
46.Similar is the position with respect to the judgement titled as [PRECEDENT]. In that case, the complainant had failed to produce any record to show that he had arranged money by selling his machine. But in the present case, the complainant was never asked to produce any such record showing the details of the property against which he arranged the money. He was not given suggestion that no money was arranged by him through the sources as disclosed by him.
47.The judgements titled as [PRECEDENT] and [PRECEDENT]] would also not be applicable to the present case as they deal with the money lending activities which is not the case in the present matter.
48.There is nothing else to show on the basis of which the presumptions in favour of the complainant could be rebutted. When the complainant has proved issuance of the cheque in his favour, also disclosing the purpose for which the same was issued, he has discharged his burden. The accused has failed to raise a probable defence so as to rebut the presumptions. Making bald averments would not serve any purpose in the absence of any evidentiary support. Thus, all the ingredients of offence under [SECTION] of the Act have been duly proved by the complainant beyond reasonable doubt. The accused has failed to raise a probable defence so as to rebut the presumptions arising in favour of the complainant.
49.For the forgoing reasons, the accused is hereby held guilty and is convicted for the offence punishable under [SECTION] of the [ACT].
50.Matter be now listed for arguments on sentence.
Announced in the open court this 8th day of July 2015 [ENTITY]/ASCJ/GJ/MM (New Delhi District) Patiala House Courts, New Delhi