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 : 151/12 b. Date of the commission of the offence : 12/08/2012 c. Name of the Complainant : [ENTITY] d. Name of Accused person and his parentage: [ENTITY], and residence S/o Sh. [ENTITY], R/o 166, Village Karkardooma, Delhi92. e. Offence complained of : Dishonouring of cheque for "Account closed". f. Plea of the Accused and his examination (if any): Not guilty because cheque not given for repayment of any loan. g. Final Order : Acquitted. h. Order reserved on : 14.07.2015 i. Order pronounced on : 25.07.2015 Page No. 1 of 10 [ENTITY] Vs. [ENTITY] 2 Brief reasons for decision: 1.
Brief facts necessary for the disposal of this case are that on 21.08.2012, a complaint was filed by Sh. [ENTITY] (hereinafter referred to as the Complainant) under [SECTION] of the [ACT] read with [SECTION] [ACT] against Sh. [ENTITY] (hereinafter referred to as the Accused) whereby cognizance was taken for the offence under [SECTION] of the [ACT], presummoning evidence was led by the complainant and vide order dt. 17.09.2012 the Accused was summoned before this Court.
2. It is the case of the complainant that accused approached the complainant at his residence on 02.01.2012 and asked for friendly loan of Rs. 2,00,000/ for seven months and the same was advanced by the complainant to the accused. In discharge of the said loan the accused issued post dated cheque in question to the complainant for repayment of the loan bearing number 085184 dt. 03.07.2012 for an amount of Rs. 2,00,000/ drawn on Khatri Cooperative Urban Bank Ltd., Saini Enclave, Karkardooma, Delhi (Ex. CW1/A). On 11.07.2012 upon presentation of the said cheque by the complainant with his bank i.e. Oriental Bank of Commerce, Rajgarh Colony Branch, the said cheque was dishonoured vide return memo dt. 21.07.2012 (Ex. CW1/B) with reason "Account Closed". The complainant contacted the accused for payment of cheque in question but the accused did not repay the same. Consequently, the complainant sent a legal demand notice dt. 27.07.2012 (Ex. CW1/C) to the Page No. 2 of 10 [ENTITY] Vs. [ENTITY] accused through speed post (postal receipt is Ex. CW1/D and track report is Ex. CW1/E). Complainant submits that despite service of notice, the accused neither replied to the notice nor repaid the loan amount and hence, present complaint case has been filed.
3. Notice of accusation u/[SECTION] [ACT] was served upon the accused under [SECTION] [ACT] on 24.01.2013, to which he pleaded not guilty and claimed trial. Plea of defence of accused was also recorded wherein he admitted to his signature on cheque in question but denied filling in the contents of the same. He further stated that he had handed over cheque in question to the complainant in presence of his business colleagues namely [ENTITY] and [ENTITY] as he had taken a loan of Rs. 40,000/ from the complainant which was to be repaid with an amount of Rs. 50,000/ by way of 15 installments. He further stated that he had repaid 9 installment of Rs. 3,500/ each to the complainant and when he could not pay due installments amount for three weeks, complainant demanded Rs. 1,70,000/ from him on account of default penalty and remaining settlement amount. He then stated that he further gave two installments of Rs. 5,000/ each to the complainant and demanded a receipt. He also stated that he had given three blank signed cheques apart from cheque in question. He stated that he had closed his bank account as the complainant did not return his cheques despite several requests. The accused lastly admitted to receiving of the legal demand notice and stated that he did not reply to the same.
Page No. 3 of 10 [ENTITY] Vs. [ENTITY]
4. To prove his case, the Complainant adopted his presummoning evidence as his post summoning evidence and examined himself as CW1. On an application of the accused under [SECTION] of [ACT] an opportunity was granted to the accused to cross examine the complainant. After cross examination of CW1 as no other witness was brought by the complainant, CE was closed on 25.10.2013.
5. Statement of the accused u/[SECTION] [ACT] was recorded on 03.04.2014 wherein the accused reiterated his plea of defence with some additions. The accused added to his plea of defence that the complainant had also got some blank documents signed by him and that he had also put thumb impression on some documents. He also mentioned that out of the four blank signed cheques that he had given one belonged to his father. Lastly, he stated that he wanted to lead evidence in his defence.
6. In order to prove his innocence, the accused examined two witnesses i.e. DW1 Sh. [ENTITY] and DW2, himself. After cross examination of defence witnesses by the counsel for the complainant, DE was closed on 18.05.2015 and the matter was listed for final arguments.
7. Counsel for both the parties argued the matter at length in support of their respective cases. Counsel for the complainant has also filed written arguments in support of his case. Heard. Record perused.
8. This is a case pertaining to dishonour of a post dated cheque which the complainant alleges to have been handed over by the accused to him for Page No. 4 of 10 [ENTITY] Vs. [ENTITY] repayment of a friendly loan. The accused has admitted his signature on the cheque in question as well as handing over the same to the complainant. Therefore, the presumptions u/[SECTION] & [SECTION] of [ACT] are in the favour of the complainant and against the accused. Nevertheless, it is clear in law that the said presumptions are rebuttable in nature which can be done by the accused by cross examining the complainant or by leading cogent evidence. At this stage, it is pertinent to note some relevant authorities of the superior courts. 8.1. It has been held by the Hon'ble Apex Court in the case titled [PRECEDENT] that: In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
8.2. Further, it has been held by the Hon'ble High Court of Delhi in case titled as [PRECEDENT] that: Page No. 5 of 10 [ENTITY] Vs. [ENTITY]
5. There is no doubt that the burden rests on the accused to rebut the presumption as raised under [SECTION] and [SECTION] of the [ACT]. However, this presumption can be rebutted by the accused not merely by examining his own witnesses but even by crossexamination of the complainant and his witnesses and bringing out on record, through cross examination, that the complainant was aliar and there was no privity of contract between the complainant and the accused and cheques were misused. It must be kept in mind that once evidence is brought on record from both the sides, it is evidence of the case and Court can draw inference from the evidence in favor or against either of the parties. Evidence is a complainant's evidence and accused's evidence for the purpose of identifying it, but once it is adduced in the case, it is evidence in the case and evidence has to be read as a whole. The Court cannot read the evidence of the complainant only to the extent it favors the complainant and overlook the rest of the evidence which supports accused case on the ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the Court can draw inference in the favor of the complainant. The accused has a right to argue his case even on the basis of complainant's crossexamination and show to the Court that the presumption in favor of the complainant stands rebutted from its own evidence.
8.3. On detailed analysis of the evidence on record and in view of the aforesaid legal principles it shall now be determined as to which of the parties i.e. the complainant or the accused has been able to gain confidence of this court.
9. Starting first with the cross examination of the complainant it is perused that certain loop holes are visible in the case of the complainant. The complainant states to have given an amount of Rs. 2,00,000/ to the accused as a friendly loan but questionably he did not execute any agreement in writing with the accused with respect to the same.
Page No. 6 of 10 [ENTITY] Vs. [ENTITY] 9.1. Moreover, loan in question is alleged to be handed over to the accused in January, 2012. While the date of demand of loan in question is clearly mentioned in the complaint, it is silent about the date of advancement of loan. Even in the cross examination of the complainant, he had been unable to tell the exact date on which he had advanced loan in question to the accused, which creates a missing link in the case of the complainant. The date of advancement becomes crucial for this case as the availability of cash amount of Rs. 2,00,000/ with the complainant at his disposal creates doubts in his case. 9.2. The aforesaid doubt becomes stronger with the further deposition of the complainant whereby he had stated that he had arranged the loan amount of Rs. 2,00,000/ out of sale proceeds of shop of his father. Surprisingly, on being questioned to that effect, the complainant has been unable to remember the date, month or year when his father had sold his shop. The complainant has also stated that he can not produce documents with respect to selling of shop of his father. Hence, the source of loan amount allegedly advanced to the accused is brought under a large area of doubt.
9.3. Further, the complainant has admitted his monthly income to be Rs. 70,000/ to Rs. 80,000/ from his business whereby he has also stated that he is an income tax payee. Not only this, the complainant has also admitted that he has shown the transaction in question in his relevant ITR and also that he can file the copy of the same before the court. However, to the utter surprise of this court, the complainant did not bring his ITR in evidence. The aforesaid Page No. 7 of 10 [ENTITY] Vs. [ENTITY] admissions of the complainant are clear examples of concoction of the transaction in question by the complainant. It may be noted that the complainant himself had stated that he had advanced loan in question out of the sale proceeds of shop of his father, then, it is questionable as to why did he show the said loan in his ITR as the loan was not advanced from his own income. Moreover, not bringing the relevant ITR in the court only leads to two inferences i.e. (a) The ITR has not been filed or (b) ITR has been filed but loan in question has not been mentioned in the ITR. This again, gives a serious blow to the case of the complainant.
9.4. Even though there is neither any eye witness to the alleged loan transaction nor any written agreement, however, one witness who could have been relevant for the case of the complainant is the father of the complainant as it was the father of the complainant whose shop's sale proceeds have been utilized for advancement of loan in question. However, neither has the complainant brought his father as witness nor his name has been mentioned in the list of witnesses.
9.5. Further, showing an example of blatant denial of a visible fact, the complainant has denied that the ink of signature on cheque in question and the remaining contents are different. On a bare perusal of cheque in question it is observed that the signatures on the cheque in question are in totally different ink and handwriting as compared to the rest of the contents of cheque in question. As the accused has stated that he had handed over blank signed cheque in Page No. 8 of 10 [ENTITY] Vs. [ENTITY] question to the complainant, the aforesaid observation with respect to difference of ink makes the defence of the accused probable.
9.6. In view of the aforesaid discrepancies in the case of the complainant, no doubt is left that there are some large gaps in the story of the complainant which have been further widened by his cross examination.
10. On the other hand, on examination of the various depositions of the accused before the court i.e. his plea of defence, his statement u/[SECTION] [ACT] as well as his testimony as a defence witness, consistency can be seen. Moreover, with the support of DW1, the case of the accused is further strengthened as the DW1 has stated that the complainant is a professional money lender and the said statement of DW1 has gone uncontroverted by the counsel for the complainant. It is also important to note that DW1 has also stated that the complainant demanded blank signed cheques from him for disbursement of loan, which again shows the modus operandi of the complainant with respect to the advancement of loan. Either in the cross examination of DW1 or DW2 nothing as such has come on record which makes their testimonies unreliable.
11. At this stage, after careful perusal of the documents available on record as well as the testimonies of the witnesses, it is now apparent that while the case of the complainant suffers from incongruency, the case of the accused has been able to stand out, making it reasonably probable. In criminal jurisprudence, while the complainant has to prove his case beyond reasonable doubts, the accused is required to bring preponderance of probabilities in his Page No. 9 of 10 [ENTITY] Vs. [ENTITY] favour. In the present case as well, whereas the truthfulness of complainant is doubtful, the veracity of statements of the accused is to an extent established. Court is also aware of the rule that benefit of any doubt in the case of the complainant goes to the accused. With these observations, it is hereby held that the accused has been successfully able to rebut the presumptions u/[SECTION] & [SECTION] of [ACT].
12. Hence, the Accused is hereby acquitted of the offence under [SECTION] of the [ACT]. The accused is directed to furnish fresh bail bond under [SECTION] of [ACT] in the sum of Rs.10,000/ with one surety in the like amount.
Announced in the open court ([ENTITY]) on 25th Day of July, 2015. MM/KKD/Delhi This judgment contains 10 signed pages. Page No. 10 of 10 [ENTITY] Vs. [ENTITY]