IN THE COURT OF SH. DHEERAJ MITTAL: M.M-02 (N.I.ACT): SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI [ENTITY] Vs. [ENTITY] CC No. 1604/1/2007 U/[SECTION] [ACT] 1. Name of the complainant : Shri [ENTITY] S/o Sh. Roshan Lal R/o 47, Rishab Vihar, Karkardooma, Delhi - 110092 2. Name of the : Shri [ENTITY] accused ,parentage & S/o Shri [ENTITY] residential address Singhal, V-108, Dayanand Marg, Gali No.7, Dispensary Wali Gali, Ghonda, Delhi-110053 3. Offence complained of or : U/[SECTION] [ACT]. 4. Plea of the accused : Pleaded not guilty and claimed trial. 5. Final Judgment/order : Acquitted 6. Date of Judgment /order : 07.08.2013 Date of Institution : 13.11.2007 Date of Reserving Judgment : 24.07.2013 Date of Pronouncement of Judgment : 07.08.2013 JUDGMENT
1. Brief facts : -
The present complaint has been filed by the complainant against the accused for the offence u/[SECTION] of the [ACT] (In short [ACT]).
It is alleged that accused was known to the complainant for the last many years and approached the complainant for a loan of Rs.1 Lakh for his urgent business needs. The accused promised to repay the loan in short duration with interest @ 2% per month. The accused collected Rs.1 lakh in cash from the complainant on 27.05.2007 and handed over to the complainant a post dated cheque bearing no. 192001 dated 27.08.2007 amounting Rs.1,06,000/- (Rupees One Lac Six Thousand only) drawn on ING Vysya Bank Ltd., Yamuna Vihar, New Delhi (cheque in question). When the cheque was presented for encashment, the same was dishonoured with remarks "payment stopped by drawer". Thereupon, a legal notice dated 28.09.2007 was sent to the accused demanding the cheque amount in question, but on failure of the accused to pay the same, the present complaint was filed.
2. The accused was summoned for the offence u/[SECTION] [ACT] by my Ld. Predecessor vide summoning order dated 14.11.2007.
3. Notice u/[SECTION] [ACT] was served upon the accused on 04.08.2009, to which he pleaded not guilty and claimed trial.
4. Complainant/CW-1 led his post-notice evidence by way of adopting the pre-summoning affidavit Ex.CW1/A, reiterated the allegations of complaint and relied upon the following documents:-
(i) Cheque bearing no. 192001 dated 27.08.2007 amounting Rs.1,06,000/- (Rupees One Lac Six Thousand only) drawn on ING Vysya Bank Ltd., Yamuna Vihar, New Delhi Ex.CW1/1.
(ii) Bank returning memo dated 28.08.2007 with reason 'payment stopped by the drawer' is Ex.CW1/2 and debit advice Ex.CW1/3.
(iii) Copy of legal Notice dated 28.09.2007 Ex.CW1/4.
(iv) Postal dispatch receipt Ex.CW1/5, UPC dispatch receipt Ex. CW-1/6 and undelivered returned envelope Ex.CW1/7.
The complainant/CW-1 was cross examined by the counsel for accused. The complainant did not lead any other evidence/did not file any other document in the present case.
5. The statement of the accused namely [ENTITY] was recorded u/[SECTION] [ACT] on 10.01.2012, wherein all the incriminating evidence was put to him.
The accused examined three witnesses in his defence evidence. Shri [ENTITY] was examined as DW-1, accused himself was examined as DW-2 and Ct. [ENTITY] from PS New Usmanpur, Delhi.
6. I have heard the submissions from both the parties and perused the record.
Briefly, the accused took the defence that he do not know the complaint and never took any kind of loan from the complainant. The accused stated that in the year 2007, he was going with his brother for getting his 4 wheeler financed and he was carrying his blank signed cheque book and some other documents alongwith him. He further stated that in the way, he lost the documents and his blank signed cheque book. He further stated that on 23.02.2007, he made stop payment instructions to his bank by a written letter. He further stated that he closed his account on 06.08.2007 and made a complaint to the Police Station Usmanpur, Delhi regarding the misplacement of his cheque book. In this way, the accused denied liability towards the complainant.
7. Before going into the merits of the present complaint case, lets consider the important legal provisions and case laws.
It is settled proposition of law that for fastening liability u/[SECTION] [ACT], following requirements are to be fulfilled: -
(a) Drawing of the cheque by the person on the account maintained by him.
(b) Drawer of the cheque issued the cheque to discharge in whole or in part,any legal enforceable debt or other liability.
(c) The cheque issued has been returned unpaid due to insufficiency of funds or exceeds the arranged amount.
(d) The drawer fails to make payment within stipulated time after the receipt of demand notice.
8. [SECTION] of [ACT] raises a presumption in favour of the payee/holder in due course/complainant regarding the legal liability in their favour. But, it is settled proposition of law that the accused can rebut the presumption of liability by raising a probable defence. Here, reference is made to recent judgment of Supreme Court in case titled as "[PRECEDENT]". The relevant portion of the judgment is reproduced hereunder for the sake of clarity;
" it is a settled position that when an accused has to rebut the presumption under [SECTION], the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail "
9. As noted above, in the present case, the main defence of the accused is that he lost his blank signed cheque book containing the cheque in question and he never issued this cheque to the complainant and does not owe any liability towards him. In support of his defence, the accused has mainly relied upon the evidence of DW-1 and his evidence as DW-2.
10. DW-1 Shri [ENTITY] Officer from ING Vysa Bank Lte. Yamuna Vihar, Delhi (Banker of the accused) turned up in the witness box and deposed that a letter dated 23.02.2007 was written by the accused to the manager of the branch. He further deposed that vide that letter, the accused made stop payment instructions of the cheques bearing No.192001 to 192025 (including the cheque in question). He produced attested true copy of letter and copy of the account history of the accused having account number 535010089514 as Ex. DW-1/1 (colly.).
The witness was not cross examined by the complainant despite the fact that opportunity was granted to the complainant for the same. Since the witness was not cross examined by the complainant, his testimony remained unrebutted/unchallenged and it can be said that the witness succeeded in proving that accused made stop payment instructions regarding the cheques bearing No. 192001 to 192025 (including the cheque in question). A bare look on the letter dated 23.02.2007 Ex. DW-1/1 (colly) would reveal that this letter was written by the accused to the branch manager regarding stop payment of the aforesaid cheques. The accused in this letter has written that he was going for financing a vehicle and he lost his cheque book which was signed by him for the financing purpose and therefore, the payment of the cheques was stopped. This letter of the accused to the bank stands proved as DW-1 i.e. the bank witness was not cross examined by the complainant. Thus, from the evidence of this witness, it may be said that the accused had made stop payment instructions regarding certain cheque including the cheque in question by citing the reason that he has lost the same while going for getting his 4 wheeler vehicle financed.
11. DW-2/accused : The accused [ENTITY] examined himself as a DW-2 and reiterated the defence taken by him. In brief, DW-2 stated that in the month of February, 2007, he was going for financing his 4 wheeler vehicle. He further deposed that besides some other documents, he was carrying his blank signed cheque book. He further deposed that the same was lost and therefore, he stopped the payment of that cheques (including the cheque in question) vide letter dated 23.02.2007. He relied upon the copy of that letter as Ex. DW-1/1 (colly.) (already exhibited and tendered by DW-1 i.e. the bank witness). He further deposed that he do not know the complainant and complainant has filed this case against him to extort money from him. He also further deposed that he made a complaint to the PS Usmanpur, Delhi.
The witness was cross examined by the counsel for accused. It may be noted that no suggestion was put to the witness regarding the fact that he has written letter dated 23.02.2007 to the banker with ill motive to create a false defence. The suggestions were put regarding the information given to the manager ING Vysa Bank and the witness was questioned regarding the stamp on the letter i.e. on the information given to the bank. But that cannot be of much help to the complainant because the bank witness has proved the letter dated 23.02.2007 written by the accused and that witness was not cross examined by the complainant. Here, it may be noted that although the Ct. [ENTITY] from PS New Usmanpur, Delhi deposed that as per the record, no complaint was filed by the accused on 15.08.2007. But the accused has produced the copy of complaint dated 15.08.2007 to SHO New Usmanpur, Delhi and it bears the stamp of the said PS with date and signatures purportedly of the DO. The accused/DW-2 has tendered this document i.e. complaint to the police in his evidence as Ex. DW-2/1 and no suggestion was put to the witness regarding the fact that he has forged this letter/complaint to create false defence. The only suggestion was put that the complaint is dated 15.08.2007, to which the witness replied in affirmative. From these facts, it appears that although the police has not made entry of this complaint in the DDR, however, the same appears to be made by the accused to the PS and the same appears to be received at the PS. It is settled proposition of law that the court has to see the quality of the evidence and to see if the evidence of the witness is reliable or not. The evidence of the accused/defence witness cannot be looked with suspicion merely because the witness is accused himself and evidence of the accused/defence witness is at par with the evidence of the complainant. The court can act upon/rely the evidence of the accused (defence witness) if it inspires confidence.
In the view of evidence of the DW-1 and DW-2, it may be said that the accused has succeeded in proving that he stopped payment of the cheques (including the cheque in question), because his cheque book was lost.
12. Here, it is important to note that the complainant has alleged that the accused approached him for loan in the month of May, 2007 and the loan was advanced to him on 27.05.2007, whereas the accused has stopped the payment of the cheques on 23.02.2007 i.e. almost three months before the alleged transaction of loan. In view of the same, the version of the accused cannot be doubted because it is not probable/expected that a person would give stop payment instructions to his bank even before the transaction.
In brief, the defence of the accused seems to be probable in the given facts and circumstances of the case.
13. It is settled law that once accused has raised a probable defence creating reasonable doubt about the existence of legally enforceable liability, the onus shifts to complainant to prove that cheque was issued by the accused towards a legally enforceable debt or liability.(Bharat Bareel & Drum Manufacturing Company vs Amin Chand Pyarelal (1993) 3 SCC 35).
As noted above, in the present case, the complainant has examined only himself as CW-1. The complainant/CW-1 reiterated the allegations as made in the complaint. The complainant/CW-1 was cross examined at sufficient length by counsel for accused. In his cross examination, the witness stated that the loan was given to the accused at Gadodia Market, Khari Bawli, Delhi. It is a matter of record that the complainant has not mentioned in his complaint and evidence affidavit that where the loan was given to the accused. It has come for the first time in the cross examination of the complainant/CW-1 that the loan was given at Gadodia Market, Khari Bawli. The witness further deposed in his cross examination that the loan was given in the presence of the brother of the accused, but it is a matter of record that this fact is not mentioned either in the complaint or in the evidence affidavit. Moreover, brother of the accused has not been cited as a witness and the complainant did not take steps to call him as a witness. Although, it may be argument of the complainant that being brother of the accused, the brother/witness could not have deposed in his favour. But it was the duty of the complainant to disclose complete facts in his complaint, evidence and he would have mentioned about the presence of the brother of the accused. The witness has deposed in his cross examination that he had informed the father of the accused before granting the loan to the accused. It may be also noted that the complainant has averred in his complaint that the accused has been known to him for the last many years through Shri [ENTITY], father of the accused. But it is a matter of record that the complainant did not take any steps to call father of the accused as a witness.
The witness deposed in his cross examination that he has filed a case u/[SECTION] [ACT] for the amount of Rs. 1,06,000/- against the brother of the accused and the same is pending in the Tis Hazari Courts, Delhi. It may be noted that the cheque in question is also of Rs. 1,06,000/-. The witness admitted in his cross examination that name, date, amount in words as well as figures have been filled by him in the cheque in question, but the complainant has nowhere said that he has filled these contents in the cheque at the instance of the accused. Further the complainant has not filed any loan agreement/loan receipt/any other documents in support of the fact that the loan was advanced to the accused and the witness has admitted the same in his cross examination that at the time of loan, no documents i.e. written agreement/receipts were executed.
In view of the answers given by the complainant/CW-1, the version of the complainant becomes doubtful. Moreover, the complainant has failed to examine any other witness in support of his case. Further, there is no document/loan receipt etc. to support the fact that the loan was advanced to the accused.
14. It is important to note the Judgment of Delhi High Court in "S.K. Mittal Vs. Saree Mehal Reg." 2012 (2) DCR
384. In the Judgment,the court held that the non- examination of material witnesses is fatal to the case of complainant. The court further held that the complainant did not mention about the presence of witnesses in his complaint and evidence and the same was disclosed for the first time during the cross examination. In that case, the court upheld the order of acquittal passed by the trial court.
Also, in the Judgment titled as "[PRECEDENT]", Hon'ble High Court of Delhi has held that "Courts must be own guard to see that merely on application of presumption as contemplated U/[SECTION] [ACT], the same may not lead to injustice or mistaken conviction. The principles of legal jurisprudence, namely presumption of innocence as human rights and doctrine of reverse burden introduced by [SECTION] should be delicately balanced".
15. In the given facts and circumstances, it can be said that the accused has rebutted the presumption of [SECTION] [ACT] by raising a probable defence. On the other hand, the complainant has failed to prove his case beyond reasonable doubt and he has failed to prove that the cheque was for the discharge of legal liability.
16. Consequently, accused is entitled to be acquitted in this case and hence, accused [ENTITY] is acquitted of offence u/[SECTION] [ACT].
File be consigned to record room after necessary formalities.
Pronounced in the open court ([ENTITY]) on 07.08.2013 M.M.([ACT])-02:SED: Saket Courts, New Delhi