IN THE COURT OF SHRI AVNEESH KUMAR, LD. MM (NI) ACT, DWARKA COURTS, NEW DELHI CC No. 4993012/2016 [ENTITY], s/o Late Sh Kartar Singh, R/o WZ10, Gali No 8, Sadh Nagar Palam Colony, New Delhi110045 Complainant . Vs. Sh. [ENTITY], s/o Sh Parmal Singh, R/o WZ357, Gali No. 6A Sadh Nagar, Palam Colony New Delhi Accused Offence complained of : U/[SECTION], [ACT]. 1881 Date on which the complaint was instituted : 18.09.2014 Plea of the Accused : Pleaded not guilty Date of Pronouncement of judgment : 20.12.2019 JUDGMENT
1) The brief facts of the case as per the complaint are that the complainant was acquainted with the accused for more than 10 years and hence he granted a loan of Rs 20 lakh to the accused in July 2013 as the accused needed money for some work. The accused issued three post dated cheques first cheque no [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 1 of 18 201978 (amount Rs 5,50,000/), second cheque 952898 (amount Rs 7,50,000/), and third cheque no 229808 (amount Rs 7,00,000/) with the assurance of encashment on presentation. This case pertains to cheque number 229808 (amount Rs 7,00,000/). Thereafter the accused lodged a false FIR against the complainant (dated 10.06.2014) to pressurize the complainant not to present the cheques.
2) Out of the three cheques, the "cheque in question" in this case is cheque no. 229808 (amount Rs 7 lakh). When this cheque was presented by the complainant the cheque got dishonoured due to the reason of "insufficient funds".
3) The complainant sent a legal demand notice to the accused dated 04.08.2014 through speed post and courier (the receipts are on record).
4) When the accused did not pay the amount even after sending the notice, the present complaint was filed by the complainant.
5) Prima facie, there was a case under [SECTION] of [ACT] as the ingredients of 138 [ACT] were fulfilled. Therefore, summons were duly issued to the accused and notice was framed accordingly on 16.07.2016.
6) In the notice the accused pleaded not guilty. It is stated by the accused in the notice that the cheuqe in question was taken from him by the complainant and his nephew [ENTITY] after they assaulted him at his residence only. It is further stated by the accused that he was forced to sign the cheque in question and 40 [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 2 of 18 other cheques. The accused admitted his signature.
7) Despite giving several opportunities the accused did not conduct the cross examination of the accused.
8) The statement of the accused under [SECTION], [ACT] was recorded on 0502 2019. In his statement the accused accepted that he was working as a contractor in DMRC but he denied taking the loan from the complainant. The accused further stated that the complainant used to work under him as a supervisor, and he gave the complainant an authority letter under his name. The accused further stated that the complainant took 4344 blank signed cheques from him and told him that payment was to be made for the labours, but the complainant misused the cheques.
9) The accused further denied receiving legal demand notice from the complainant. The accused further stated that the complainant had held him hostage for 49 days and his children also filed a police complaint in this regard, and he also filed a police complaint against the complainant at PS Kanjawala, where investigation is pending.
10)Thereafter, the accused led the defence evidence, the accused got himself examined as DW1. The chief examination of the accused took place on 24.04.2019. It was stated by the accused that he gave the cheque to the complainant for payment to labour. The accused further stated that the complainant kept him hostage for 39 days. The accused further stated that [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 3 of 18 after his release from the captivity of the complainant he filed a complaint in PS Palam which was later transferred to PS Kanjhawla. The accused further stated that the complainant had misused his cheques and filed a case for an amount of 20 lakh and told him to take his case back and he (complainant) would withdraw all his cases.
11)The accused further stated that as he has not taken any amount from the complainant therefore he could not withdraw his cases. The accused further stated that the complainant in connivance with the IO of PS Kanjhawla kept the case pending for about four years and thereafter it was sent to court. The accused further stated that the next date of the hearing for the case is 24.05.2019. The accused further stated that the complainant has filed four cases against him, out of which in one case he has been acquitted.
12)The accused was cross examined on 30072019. At this stage the accused is shown a document which is Ex DWX1, which is authority letter regarding transfer of responsibility from the accused to the complainant, and after looking at it the DW1 states that the document was signed by him when it was blank. At this stage the accused is shown a document which is Ex DWX 2, which is acknowledgment of liability by the accused, and after looking at it the DW1 states that the document was in his handwriting but it was not signed by him.
13)Further cross examination of DW1 took place on 25.09.2019. At this stage the [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 4 of 18 accused is shown a document which is Ex DWX3, which is authority letter transferring the metro work to the complainant from the accused along with the photocopy of the aadhar of the accused, after looking at it the accused denied the signature on both the authority letter and the photocopy of aadhar, but then again voluntarily admitted the signature on the aadhar. When asked about the stamp on the authority letter and the on photocopy of the aadhar the accused stated that the stamp was snatched from him.
14)The accused further admitted in his cross that the police filed a cancellation report of FIR no 440/14 PS Kanjhawala (Ex DWX4). The accused further stated that he filed a protest petition against the cancellation report and the same was pending for orders on 21112019. The accused further states that he or his family did not file any complaint with regard to taking control of his work by the complainant forcefully.
15)The matter was filed for final arguments on 18.10.2019. Final arguments were heard from the complainant, and the accused was given liberty to file written arguments in between.
16) It is submitted by Ld. Counsel for the complainant that the cheque was signed by accused as the accused has accepted it in his notice u/[SECTION] [ACT] as well in his statement under [SECTION], [ACT] and hence the presumption of the law ([SECTION], [ACT]) was in the favour of the complainant. It is further argued by the Ld. Counsel for complainant that as the cheque and its issuance is [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 5 of 18 admitted by the accused, now, it is for the accused to prove that the cheque was actually not issued to discharge some debt or liability or that the cheque was taken from him forcibly.
17)Further, it is submitted by learned counsel for the complainant that the accused also accepted in his cross that document Ex DWX2, (which is an acknowledgment of his liability) is in his own hand writing and therefore the complainant's case is proved.
18)Further, it is submitted by learned counsel for the complainant that the accused has filed one FIR against the complainant before the filing of this case but the police has filed cancellation report in that case which proves that the defence of the accused was false and fabricated.
19) Appreciation of Evidence: Before proceeding further, it would be better to have a look at the relevant legal provisions.
[SECTION] of the [ACT] provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019)
6 of 18 returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 7 of 18 unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. Further, [SECTION] of the [ACT] provides that:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt or other liability".
20) In the instance case some requirements of [SECTION] [ACT] are fulfilled i.e. a duly signed cheque and its dishonour (as returning memo is there), are duly proved, but the accused has stated in his notice under [SECTION], [ACT] and and [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 8 of 18 his statement u/[SECTION] [ACT] that he did not receive any legal demand notice.
21)The legislative intent behind [SECTION] [ACT] is that when the accused comes to know about the dishonor of the cheque, then, he must pay the amount to the complainant and the requirement of notice within 15 days is there to serve that purpose only. It is true that in a particular case, a notice might not be duly served after the dishonor of the cheque but in any case, when a complaint has been filed under [SECTION] [ACT], then, summons is served upon the accused. If the intention of the accused is to fulfill his obligations then, he can be expected to pay the amount after the serving of the summons. Once the summons have been served, the dishonor has come to the knowledge of the accused.
22) In [CASE NUMBER] [PRECEDENT]. (dated: 18.05.2017), it was observed by the Hon'ble Supreme Court of India "It is also to be borne in mind that the requirement of framing of notice is clear departure from the rule of criminal Law, where there is no stipulation of giving notice before filing a complaint. Any drawer who claims [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 9 of 18 that he did not receive the notice sent by post, can within 15 days of receipt of summons from the court in respect of the complaint under [SECTION] [ACT], make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under [SECTION] [ACT], cannot obviously contend that there was no proper service of notice as required under [SECTION] [ACT], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]. In our view, any other interpretation of the proviso would defeat the very object of the legislation".
23)Coming to the facts of the case, both the parties are participating in the proceedings of the present case and the accused was duly served with summons. At this stage, the accused cannot be allowed to raise a plea that a proper notice has not been served upon him.
[ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 10 of 18
24) As the summons of the court were duly served, the accused was duly served and if his intentions were bona fide regarding paying his liability, then, he must have paid the amount of the cheque within 15 days of receiving this notice which he did not do in this particular case.
25) It is true that in a normal criminal case, the burden to prove the case prima facie is upon the prosecution or complainant but under the [ACT], if the requirements of duly signed cheque, its dishonor and subsequent notice have been proved, then it is for the accused to prove that the cheque was not issued for discharging any liability/debt. It is for the accused u/[SECTION] [ACT] to prove that the cheque was not given for the discharge of any debt or other liability, and if no further evidences are led by the accused to discharge his burden then he would be convicted.
26) Before coming to intricacies of evidence law, it would be better to have a look at provisions [ACT] (herein after [ENTITY]). It is provided by [SECTION] [ENTITY]:
101.Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fats which he asserts, must prove that [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019)
11 of 18 those facts exist When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Further, it is provided by [SECTION] [ENTITY] that
102. On whom burden of proof liesthe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
27)[SECTION] [ACT] refers to the burden of proving the whole case and [SECTION] refers to the different stages a particular case. The burden under [SECTION] [ENTITY] constantly shifts depending on the evidence and other circumstances.
28) It was observed by Hon'ble Supreme Court of India in [PRECEDENT] [Dated 02/05/2006] wherein it has been held that "in terms of the said provision, the burden of proving the [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 12 of 18 fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto".
29) It has been remarked by the Hon'ble Supreme Court of India in the case of [PRECEDENT] [Dated 06/02/2019], "[SECTION] ([ACT] Introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under [SECTION] [ACT] is a presumption of law as distinguished from presumption of facts".
[SECTION] [ACT] lays that when the requirement of signed cheque and its dishonor have been proved by the complainant and payment is not made by the accused after serving of legal demand notice within 15 days, then, it would be for the accused to prove that he does not owe any legal liability. If the accused is able to prove the non existence of legal liability or debt, then, the burden would again come out on the complainant to prove that such a [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 13 of 18 liability existed.
31)In the present case, the complainant's initial burden has been discharged as the cheque has been dishonored, for which returning memo is there. Further, the signature on the cheque has been admitted by the accused. The burden under [SECTION], [ENTITY] has shifted to the accused to disprove the liability.
32) It was observed by the Hon'ble Supreme Court in the case of [PRECEDENT].
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019)
14 of 18 is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
33) In a criminal case the complainant/prosecution has to prove the guilt of the accused beyond reasonable doubt and conversely it follows that even when the burden has shifted on the accused, the accused need not to prove his defence beyond reasonable doubt but he is merely required to create reasonable doubts on the version of the prosecution/complainant and if he is able to do it then benefit of doubt must be given to the accused as per the [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 15 of 18 decision of the Hon'ble Supreme Court in [PRECEDENT].
34)The term reasonable doubt is very subjective, and a uniform standard cannot be laid down to define it. "Reasonable doubt" would depend upon the fact and circumstances of each case.
35) To get the benefit of doubt the accused has to create reasonable doubt on the version of the complainant/prosecution, and it is entirely up to the accused to create such reasonable doubts by exercising his right to cross examination or by adducing separate witnesses or by both.
36) In his notice it was stated by the accused that he issued the cheque in question because he was assaulted by the complainant and complainant's nephew. But, in his statement under [SECTION], [ACT] it was stated by the accused that the complainant used to work under him as a supervisor, and the complainant took 4344 cheques from him for the payment of labours and misued his cheques.
37) Further, in his chief examination as defence witness dated 24042019, it was stated by the accused that the complainant kidnapped him for 39 days and the cheques were misused by the complainant.
38) It was stated by the accused in his chief examination as defence witness dated 24042019 that he filed an FIR againt the complainant as complainant kidnapped him for 39 days. An FIR was indeed lodged but that FIR was [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 16 of 18 lodged by the accused himself and as per the FIR the accused was kidnapped by two persons from 01052014 to 09062014 and after the release the accused himself filed the FIR. But, question arises at this stage that if the accused was kidnapped for a period of more than 30 days then why the family of the accused did not file an FIR in between? It raises big doubts on the version of the accused (Ex DWX/4).
39) Further in the FIR filed by the accused, the police filed the cancellation report, as the accused (the complainant in the FIR) did not appear to get his statement recorded under [SECTION] [ACT] and further the accused filed an affidavit requesting the police to cancel his FIR. It again raises very serious doubts on the defence of the accused.
40) Further, in his cross examination dated 30072019 when the accused was confronted with Ex DWX1 (which is an authority letter transferring all the work of the accused related to DMRC to the complainant) and it was stated by the accused that it was his signature only but he made signature on blank paper. Now, it was for the accused to prove that he signed a blank paper and not an authority letter, but the accused has not adduced any evidence to support his statement.
41) Further, in his cross dated 30072019 when the accused was confronted with Ex DWX2, (which is a letter admitting the liability of the accused to the complainant), and it was stated by the accused that it was in his handwriting [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 17 of 18 only but he did not sign it, but the accused did not offer any explanation as to why he wrote such a letter in his hand writing.
42)For the above mentioned reasons, accused has not been able to discharge his burden of proving that the cheque was not given for discharging a debt or liability.
43)In view of the aforesaid discussion, I hereby hold that the complainant has duly proved and substantiated his case against the accused and all the ingredients of [SECTION] [ACT] stand proved against the accused. Accordingly, accused [ENTITY] is hereby convicted for the offence u/[SECTION] of [ACT] for the dishonour of cheque no 229808 dated 25042014 for an amount of Rs seven lakh.
This judgment contains 18 pages.
Every Page of this judgment has been signed by me. Copy of this judgment be given to the convict free of cost AVNEESH KUMAR KUMAR Date: 2019.12.21 Announced in the open court on 15:13:00 +0530 this day of 20th December 2019 (AVNEESH KUMAR) MM ([ACT])/DWARKA COURT NEW DELHI [ENTITY] v. [ENTITY] CC No 4993012/2016 (Pronounced on 20.12.2019) 18 of 18