$-86 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 236120TT RAJESHWARANAND ..... Petitioner Through: Mr'. Nageshwar Pandey, Mr. A.K. Sinha. Advs. versus STATE & ANR ..... Respondent CORAM: FION'BLE MS. JUSTICE MUKTA GUPTA ORDER 16.0s.2011 Crl.M.A. 5819/201 1 Exemption allowed subject to just exception CRL.L.P. 236120II By the present petition, the Petitioner seeks leave to appeal against the impugned order dated 31$ March,20Il accluitting the Respondent No.2 for offence punishable under Section 138 of the Negotiable Instruments Act (in short the N.L Act.). CRL.L.P. 236/2011 page 1 of 7 o Signing Date:03.09.2024 16:59:12 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified i The allegations as set out by the Petitioner in the complaint and by way of his evidence on affidavit are that the Respondent No.2 / accused were having long-standing relations due to which the Respondent No.2 approached the Petitioner for a loan of Rs. 4 lakhs. The said dernand of the Respondent No.2 was acceded by the Petitioner and in discharge of the aforesaid liability the Respondent No.2 issued the cheque bearing No. 505467 in favour of the Petitioner for a sum of Rs. 4lakhs. The Respondent also executed a Pronote in favour of the Petitioner and receipt of payment of the amount. When the cheque was presented it was dishonoured vide returning memo dated l4th November, 2008 for the reasons "Exceed Arrangement". A legal notice was duly served on Respondent No.2 and since no payrnent was made the above-mentioned complaint was filed. Learned counsel for the Petitioner contends that in view of Sectionl39 of the N.I. Act all that the complainant has to prove is that a cheque was drawn in favour of the complainant and on presentation thereof the same was not honoured and a notice thereon was given withinl5 days. In case all these requirements are frrlfilled, then the Court is bound to raise a statutory presumption under Section 139 of the Ii.I. Act which states that when all these ingredients are fulfilled the Learned Trial Court shall raise the :t^ ckL.L.P. 236/2011 p&ge 2 of 7 ,G\ It is contended that the decision of the *f presumption against the accused. Learned Trial Court is contrary Supreme Cowt rn Hiten P. Dalal 16. to the law laid down bv the Hon'ble Vs. Bratindranath Banerjee (2001) 6 SCC I have heard the learned counsel for the Petitioner at length and perused the report. There is no dispute to the proposition that on the Petitioner/complainant proving that he was a holder of cheque in the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability, the Court is bound to raise the statutory presumption. However, the said presumption is rebuttable which can be rebutted even by the cross-examination conducted on behalf of the accused and need not necessarily be, by leading defence evidence. Thus, while evaluating the evidence, the Court has to first see whether the initial burden has been discharged by the complainant that he was a holder in due course of a cheque which was dishonoured and the cheque was issued in discharge of a debt or liability, in part or in whole. Once this initial burden is discharged by the complainant the Court has than to evaluate whether the said presumption stands rebutted or not by the accused either through cross- examination of complainant witnesses or by leading defence evidence. -'a CRL.L.P. 236/2011 poge 3 of 7 {r A perusal of the facts of the present case would show that though the Petitioner deposed about the fact that the Respondent No.2 took loan from him and in discharge of the said liability he issued this cheque in favour of the Petitioner, however, in his cross-examination the Respondent No.2 has successfully brought out that he had not issued this cheque in discharge of a debt or liability. Further that Gaddi was run by the Complainant's mother earlier even before his birth who also used to advance loan to people and used to keep written record of the same as well and whenever Petitioner. gave loan he also maintained records. The Petitioner has not been able to prove from any record that the Respondent No.2 had taken such a loan and nor has he been able to prove his averment that earlier also such loans were advanced by hirn. He has failed to recollect any date, month and year of any previous transaction between the parties and has failed to produce any written documentary proof thereon. The Respondent has examined defence witnesses who have proved that the relations between the Petitioner and the Respondent No.2 were very cordial. Photographs in this regard are duly exhibited by the Respondent No.2. However, the said relations became strained after 2008 as Respondent No.2's daughter was married to the son of the Petitioner and Petitioner started harassing his daughter just after one -{ CRL.L.P. 236/2011 page 4 of 7 G week of the marriage. According to the Respondent No.2 the said cheque was taken from his house by the son of the Petitioner when the Respondent No.2 was not in Delhi. He has also examined DW2 and hand-writing expert who has proved on record his report relating to comparison of signatures Ql appearing on documents Ex.DWl/l with the admitted signature and has concluded that the signatures were of the same person. The Learned Trial Court has held in para 15 of the judgment that once the accused has admitted his signatures on the cheque as well as on the pronotes, the presumption of their proper execution by the accused arises but came to the vital issue as to the need and the occasion for the accused to antedate the pronote by putting the date of January 2008 especially when there was no mention of any of his visits to the complainant in the month of January. The Cowt has held that the onus in a criminal case is not as heavy on the accused as that on the complainant. The accused can dischargB his burden even by means of preponderance of probability and would succeed if his defence is probable. The Learned Trial Court has held that admittedly the complainant has not explained the source and means from where he had arranged an amount of Rs. 2.5 laktrs in cash to be given to the accused. Though the Petitioner had contended that Respondent No.2 had obtained CRL.L.P.236/2011 Page 5 of 7 "{ ^7t loans from him in the past also but no such record relating to any financial transaction between the parties has been placed and proved on record by him. He has not even examined Mr. Puri who had arranged the amount of Rs. 1.5 lakh to be given to the accused. The Petitioner had requested the Respondent No.2 to marry his daughter with the Petitioner's son. The defence evidence and the cross-examination shows that the ring ceremony was performed on 30th Muy, 2007 and the marriage was performed on 13h September, 2007. The entire expenses of the ceremonies performed was borne by the Respondent No.2. It was found highly irnprobable that if there was no need and occasion for the Respondent No.2 to approach the complainant at the time of marriage, where was his need to approach the complainant in the month of June when the marriage was performed requesting him for a loan of Rs. 4 lakhs. No reason has also been given that though the demand of the loan was made in June 2007, the loan was however given in Decemb er 2007 and January 2008. Thus, the Learned Trial Court came to the conclusion that in view of the rebuttable presumption, the Respondent No.2 has been able to discharge the burden against him under Section 139 of the N.I. Act. I CRL.L.P. 236/2011 page 6 of 7 In Ganpat Vs. State of Haryana & Ors. 2010 (10) SCALE 237 the Hon'ble Supreme Court held that in an appeal against acquittal the Appellate Court would interfere only if the impugned order is perverse or illegal or ignores material facts or law. Even if two views are possible, then the Appellate Court will not substitute its view. The aforesaid discussion shows that there is no perversity or illegality i" the impugned order warranting interference by this Court. 4 Leave to appeal is declined. Petition is dismissed. It^,;rAffi- MUKTA GUPTA, J. MAY l6,20tl 'ga' page 7 of 7 CRL.L.P. 236/2011