Final Order 5

Order Details: COPY OF JUDGMENT
Pdf Text: CNR No. DLNE01-002970-2024
Ram Chandra Sharma v. Narendra
Crl. Appl. No. 181/2024, CC No. 1037/2022, PS Bhajanpura
DLNE010029702024
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
Criminal Appeal No. : 181/2024
Under Section : 415 BNSS
Police Station : Bhajanpura
CC No. : 1037/2022
CNR No. : DLNE01-002970-2024
In the matter of: -
Sh. Ram Chandra Sharma
S/o. Late Sh. Upendra Sharma,
R/o. H.No. 119, Gali No.06,
Maszid Wali Gali, Daya Niketan,
Ambedkar Colony, Village Teela Shahbazpur,
Tehsil Loni, District Ghaziabad, U.P.
...Appellant
V E R S U S
Sh. Narendra
S/o. Late Sh. Om Prakash Sharma,
R/o. H.No. 506, Gali No.11,
Near Red Rose Public School,
Mandoli Extension, Nand Nagri, Delhi.
...Respondent
Date of Institution : 05.10.2024
Date of reserving Judgment : 23.10.2024
Date of pronouncement : 04.11.2024
Decision : Appeal is allowed.
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Ram Chandra Sharma v. Narendra
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JUDGMENT
1. This is an appeal preferred against the judgment of conviction
dated 02.09.2024 and order on sentence dated 05.09.2024, as
passed by trial court in a complaint case titled as Narendra v.
Ram Chandra Sharma, bearing CC No. 1037/2022, under Section
138/142 of Negotiable Instruments Act, 1881 (hereinafter
referred to as the Act) read with Section 200 Cr.P.C. Vide
impugned judgment dated 02.09.2024, the trial court convicted
appellant herein for offence under Section 138 of the Act. Vide
impugned order on sentence dated 05.09.2024, the trial court
sentenced convict (appellant herein) with simple imprisonment
for fifteen months and convict was to pay fine equivalent to Rs.
8,21,000/-, including the interest, legal fee and remaining
amount. Fine amount of Rs. 8,21,000/- was directed to be paid by
convict/appellant herein as compensation to the complainant Sh.
Narendra (respondent herein) u/s. 357(1)(a) Cr.P.C. within 45
days from 05.09.2024. In case of default of payment of said fine,
convict was sentenced to serve simple imprisonment for three (3)
months. Trial court also directed that the fine amount was to be
recoverable as per provision of Section 421 Cr.P.C.
BRIEF FACTS OF THE CASE
2. Briefly stated, the relevant facts giving rise to this appeal are that
complainant Sh. Narendra (respondent herein) filed a complaint
dated 02.09.2022 through e-filing for offence punishable under
Section 138/142 of the Act read with Section 200 Cr.P.C., against
accused Ram Chandra Sharma (appellant herein). Complainant
filed this complaint for dishonour of two cheques bearing no.
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Ram Chandra Sharma v. Narendra
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170273 and 170274 in the sum of Rs.3,50,000/- each and both
dated 08.07.2022, drawn on State Bank of India, Balram Nagar,
Loni, Ghaziabad, U.P. As per allegations, complainant and
appellant were friends and they were well known to each other.
In January 2021, appellant approached complainant and
demanded a personal loan of Rs.7,00,000/ (seven lacs) with the
assurance that the same would be refunded to him within a period
of one year. Appellant herein had also assured respondent herein
that respondent would be compensated with the interest as loss, if
any. Considering request of appellant, complainant advanced a
loan of Rs.7,00,000/--(seven lacs) to the appellant on 04.01.2021
for the period of one year.
3. After completion of one year, appellant had requested to extend
the period of six months on the ground that he was suffering from
economic crises. Appellant also assured complainant that the loan
amount would be paid within the period of six months.
4. After completion of one year and six months from 04.01.2021
(date of giving loan), complainant demanded the amount of loan
from the appellant. Appellant in discharge of his liability, had
issued above-mentioned two cheques in favour of complainant.
Appellant had put his signature on both the cheques in question
and appellant assured complainant that the same would be
honored on their presentation to his banker.
5. On assurance of appellant, complainant presented above-
mentioned both the cheques on 15.07.2022, for their encashment
with his banker i.e. Kotak Mahindra Bank, Branch Yamuna
Vihar, Delhi-110053. But the said cheques were dishonoured and
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same were returned back with remarks “Funds Insufficient”, vide
cheque return memo dated 18.07.2022. Thereafter, complainant
contacted appellant about dishonour of the cheques in question
and demanded above said cheques amount, but appellant did not
give reply satisfactorily to make payment.
6. Finding no other way, complainant served a legal notice dated
23.07.2022 upon appellant through his counsel by way of
Registered Post and Speed Post at his residence on 26.07.2022,
with demand to return aforesaid cheque amount within 15 days
from the date of receipt of the legal notice. But even after expiry
of 15 days, the appellant failed to repay the cheques amount to
the complainant. Therefore, this complaint was filed by the
complainant against appellant herein for offence under Section
138/142 of the Act read with Section 200 Cr.P.C.
7. Ld. MM/NI Act/Digital Court, North-East, Karkardooma Court,
Delhi, took cognizance of offence under Section 138 of the Act
and summoned appellant as accused vide order dated 19.10.2022.
On 13.09.2023, notice under Section 251 Cr.P.C. read with
Section 263(g) Cr.P.C. was framed and served upon appellant
herein, to which he pleaded not guilty and claimed trial.
Appellant admitted his signatures on the cheques in question and
denied other particulars of the cheques being filled by him. He
admitted his address to be correct but denied having received the
legal demand notice taking plea that he was not at home at that
time. He further pleaded that he had taken loan of Rs.2 lacs from
Sanjay Sharma through Satish Sharma. Appellant further pleaded
that he had returned 6-7 EMIs of Rs.6,000/- each. The amount
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was taken at the interest rate of 3%. It was further pleaded by
appellant that he had not paid the entire amount and he had no
relation with the complainant.
8. In complainant’s evidence, complainant examined himself as
CW1 on 01.12.2023 and he tendered his affidavit in post
summoning evidence and relied upon the documents, which are:
- (i) Ex.CW1/A-Evidence of complainant by way of affidavit; (ii)
Ex.CW1/1-Original cheque bearing no. 170273; (iii) Ex.CW1/2-
Original cheque bearing no. 170274; (iv) Ex.CW1/3 &
Ex.CW1/4-Cheque returning memos dated 16.07.2022; (v)
Ex.CW1/5-Legal Notice; and (vi) Ex.CW1/6 & Ex.CW1/7-
Postal Receipts. CW1/complainant was cross examined by ld.
counsel for appellant. Thereafter, CE was closed.
9. Statement of appellant was recorded under Section 313 Cr.P.C.
Appellant admitted taking loan of Rs. 2 lacs and issuing of two
signed cheques in questions; but he denied having taken loan of
Rs.7 lacs. He took plea that he had taken Rs.2 lacs and the
cheques in question were given as security. He denied having
received legal notice dated 23.07.2022. Appellant admitted the
fact that cheques in question bore his signature. He took plea that
cheques in question were not filled by him. He further took plea
that the cheques in question were given to Sanjay Sharma
through Satish Sharma and not to the complainant. He further
took plea that he had taken Rs.2 lacs from Sanjay Sharma
through Satish Sharma. Appellant took further plea that he had
returned around Rs.24,000/- to Sanjay Sharma and Rs.10,000/- to
Satish Sharma. Appellant opted to lead evidence in his defence.
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Ram Chandra Sharma v. Narendra
Crl. Appl. No. 181/2024, CC No. 1037/2022, PS Bhajanpura
10. Appellant examined himself as DW1. DW1/appellant deposed
that he had borrowed loan of Rs.2 lacs from Sh. Sanjay Sharma
at the rate of interest of 3% per month, through Sh. Satish
Sharma. DW1 further deposed that he had given 2 cheques to Sh.
Sanjay Sharma through Sh. Satish Sharma, for security purpose.
DW1 further testified that he had paid Rs.6000/- per month for 6-
7 months to Sh. Sanjay Sharma, later on appellant got ill. DW1
further deposed that he did not have any transaction with the
complainant and he never met complainant or talked to him.
DW1 further deposed that he had given Rs.10,000/- to Sh. Satish
Sharma on 17.12.2022, when Sh. Sanjay Sharma was
hospitalised.
GROUNDS
11. Being aggrieved of the impugned judgment of conviction and
order on sentence, appellant preferred this appeal on the
following grounds: -
A. That trial court did not consider the fact that respondent herein
could not prove existence of any legally enforceable debt or
liability against appellant.
B. That trial court did not consider the fact that in cheques in
question the column of amount, date and name of payee were
filled by respondent herein. That appellant had only put his
signature on the same.
C. That trial court did not appreciate the fact that respondent failed
to prove the liability of Rs.8,21,000/- against the appellant. That
neither there was any liability upon appellant, nor was there any
direct relation between appellant and complainant.
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ARGUMENTS
12. Sh. Rishikesh Poddar, ld. counsel for convict/appellant herein
argued on the lines of grounds taken in the appeal. He argued that
appellant had been taking stand since the time of framing of
notice that he had not taken any loan from the
complainant/respondent herein and that he had taken loan of Rs.2
lac only from one Sanjay Sharma. Ld. counsel argued that
appellant deposed the same fact as witness. However,
complainant did not bring any evidence or witness to prove that
he had given loan to the appellant or that it was loan of amount
of Rs.7 lac.
13. In the written submissions filed on behalf of appellant, ld.
counsel Sh. Rishikesh Poddar, mentioned as under: -
A. That appellant has no relation with the respondent and no debt or
other liability is against the respondent.
B. That appellant had given blank cheques with his signature, to Sh.
Sanjay Sharma (son of respondent) through Sh. Satish Sharma
(brother of respondent).
C. That particulars of cheques in question was filled by Sh. Sanjay
Sharma in absence of appellant and this fact was admitted by
respondent in his cross-examination.
D. That though the signature of the appellant in the cheques in
question was established, the presumption u/s. 139 of the Act, is
not attracted.
E. That there was no financial capacity of the respondent to the
effect of having advanced a loan to the appellant.
F. That respondent failed to show details of the loan advanced, nor
was he able to show when did he received the signature on blank
cheques.
G. That there is no corroborative evidence against the appellant,
except the contradictory statement of respondent.
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H. That version regarding the arrangement of Rs.7,00,000/- by the
respondent is highly doubtful, which shows his incapacity to
advance the money.
I. That at the time of giving the loan in question, neither any
receiving nor any documentations was prepared.
J. That neither any ITR was filed by the respondent which shows
his capacity to advance the loan to the appellant.
K. That respondent failed to examine any witness to prove his case
beyond reasonable doubt.
L. That appellant has been able to shift the weight of the scales of
justice in his favour through the preponderance of probabilities.
14. In support of his contentions, ld. counsel for appellant relied
upon certain case laws, which are as under: -
A. Case of Sri Dattatraya v. Sharanappa, SLP (Crl.) No. 3257 of
2024, to submit that
“no financial capacity or no Income Tax
Returns by the respondent to the effect of having advanced a loan
to the Appellant, is enough to cast a shadow of doubt on the case
presented by the Appellant.”
B. Case of John K. Abraham v. Simon C. Abraham & Anr., (2014)
200 SCC 236, wherein Hon’ble Apex Court held that
“in order to
invoke the presumption under the aforesaid two provisions of
1881 Act, the jurisdictional facts had to be established by
complainant and any lacuna in the evidence of the complainant
would strike at the root of the complaint of this nature.”
C. Case of M/s. Rajco Steel Enterprises v. Kavita Saraff & Anr.,
SLP (Criminal) No. 5583 of 2022, wherein Hon’ble Supreme
Court held that
“The sum involved in the cheques was advanced
in discharge of a legally enforceable debt or not, the petitioner
has failed to show if any sum was advanced towards financial
assistance. This strikes at the root of the petitioner’s case.”
D. In the case of Ahmed Hussein Vali Mohammad Saiyed v. State of
Gujarat, 2009 [8] SCR 719, it was held that
“The sentence
should “deter the criminal from achieving the avowed object to
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(sic break the) law,” and the endeavour should be to impose an
“appropriate sentence”. The court also held that imposing
“meager sentences” “merely on account of lapse of time” would
be counterproductive.
15. Per contra Sh. C.S.S. Tomar, ld. counsel for complainant/
respondent herein argued that appellant admitted his signature on
the cheques. Appellant also admitted the factum of taking loan.
Appellant also admitted correctness of his address on which legal
demand notice was delivered. Ld. counsel argued that the
presumptions u/s. 118 and 139 of the Act operated against the
appellant. Appellant did not rebut those presumptions. Appellant
even did not send any reply to the legal demand notice, nor did
he file any case against the complainant for misuse of his
cheques.
ANALYSIS OF ARGUMENTS, LAW AND FACTS: -
16. In the present case, both parties took my attention to the cross-
examination of complainant as well as accused. In nut-shell the
issue involved in the case revolves around the question that
whether accused/appellant herein rebutted the statutory
presumptions and that whether complainant/respondent herein
proved his claim?
17. Supreme Court in the case of Kumar Exports v. Sharma Carpets,
(2009) 2 Supreme Court Cases 513, explained the legal
principles related to burden cast upon both the parties in the
following manner: -
“18. Applying the definition of the word 'proved' in Section 3 of the
Evidence Act to the provisions of Sections 118 and 139 of the Act, it
becomes evident that in a trial under Section 138 of the Act a
presumption will have to be made that every negotiable instruments was
made or drawn for consideration and that it was executed for discharge
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of debt or liability once the execution of negotiable instrument is either
proved or admitted. As soon as the complainant discharges the burden to
prove that the instrument, say a note, was executed by the accused, the
rules of presumptions under Sections 118 and 139 of the Act help him
shift the burden on the accused. The presumptions will live, exist and
survive and shall end only when the contrary is proved by the accused,
that is, the cheque was not issued for consideration and in discharge of
any debt or liability. A presumption is not in itself evidence, but only
makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase “until the contrary is proved” in Section 118
of the Act and use of the words “unless the contrary is proved” in
Section 139 of the Act read with definitions of “may presume” and 'shall
presume' as given in Section 4 of the Evidence Act, makes it at once
clear that presumptions to be raised under both the provisions are
rebuttable. When a presumption is rebuttable, it only points out that the
party on whom lies the duty of going forward with evidence, on the fact
presumed and when that party has produced evidence fairly and
reasonably tending to show that the real fact is not as presumed, the
purpose of the presumption is over.
20. The accused in a trial under Section 138 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 nonexistence 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 114
of the Evidence Act to rebut the presumptions arising under Sections
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118 and 139 of the Act.”
18. In the case of Kumar Exports (supra), Supreme Court observed
that though on the parameters of preponderance of probability,
the defence should be established and bare denial is not
sufficient. This position was reiterated by High Court of Delhi in
the case of Jai Prakash Singh v. Rashmi Aggarwal,
Crl.R.P.749/2010 decided on 11.07.2013. In this case, High Court
of Delhi observed that: -
“
The accused cannot succeed in rebutting the statutory presumptions as
envisaged under Section 118 r/w Section 139 of Negotiable Instruments
Act by mere denials or by raising a weak defence or even by raising a
strong defence, but not proving the same through any reliable or cogent
evidence.”
19. In the case of Dhanvantray Balwantrai Desai v. State of
Maharashtra, AIR 1964 SC 575, Supreme Court observed that the
appellant had to rebut the presumption by proving the facts,
rather than giving a bare explanation, which could be plausible.
20. High Court of Delhi in a case of M/s. Pine Product Industries &
Anr. v. M/s. R.P. Gupta & Sons & Anr., 2007 [1] JCC [NI] 28,
held that in absence of proof of amount allegedly paid to the
appellant and proof of all actual dues against the appellant and
excess amount received by him, appellant is entitled for acquittal.
21. Delhi High Court also dealt with the concept of the cheques
being given allegedly as security and the liability arising under
Section 138 NI Act, in the case of Suresh Chandra Goyal v. Amit
Singhal, Crl. L.P. 706/2014 decided on 14.05.2015. The court
made following observations: -
“There is no magic in the word “security cheque”, such that, the
moment the accused claims that the dishonoured cheque (in respect
whereof a complaint under Section 138 of the Act is preferred) was
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given as a “security cheque”, the Magistrate would acquit the accused.
The expression “security cheque” is not a statutorily defined expression
in the NI Act. The NI Act does not per se carve out an exception in
respect of a 'security cheque' to say that a complaint in respect of such a
cheque would not be maintainable. There can be mirade situations in
which the cheque issued by the accused may be called as security
cheque, or may have been issued by way of a security, i.e. to provide an
assurance or comfort to the drawee, that in case of failure of the primary
consideration on the due date, or on the happening (or not happening) of
a contingency, the security may be enforced. While in some situations,
the dishonor of such a cheque may attract the penal provisions contained
in Section 138 of the Act, in others it may not.”
22. In Rangappa v. Sri Mohan, 2010 V AD (SC) 565, three judges
bench of Supreme Court held that “Keeping this in view, it is a
settled position that when an accused has to rebut the
presumption under Section 139 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 doubt
about the existence of a legally enforceable debt or liability the
prosecution can fail. The accused can rely on the material
submitted by the complainant in order to raise such a defence and
it is conceivable that in some cases the accused may not need to
adduce evidence of his/her own.”
23. In Pine Product Industries v. M/s. R.P. Gupta & Sons, 2007 I AD
(Delhi) 433, Delhi High Court held that “presumption of liability
has been rebutted by the accused so he is liable to be acquitted,
when accused pleaded that his cheque was misused and he had
no liability to pay any amount, then keeping in view the fact that
complainant had given no details what were the liabilities of the
accused, what was the amount for which cheque was issued as a
part payment, on which date and what amount was given to the
accused at what rate, what was the extent of the goods which
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were adjusted against some payments.”
24. In Mr. Kishore Shankar Singapurkar v. State of Maharashtra
2004 (1) DCR 302, Bombay High Court held that “the
complainant should have narrated the entire history of the
transaction and off shoots of the transaction resulting in the
litigation between the parties. It is the bounden duty of the every
complainant to narrate full details of the transaction including the
past history and the litigation arising out of it, whenever he files a
complaint in a criminal court. If he does not do that the court is
very must likely to be misled.”
A. Delhi High Court in M/s. Alliance Infrastructure Project Pvt. Ltd.
& Ors. v. Vinay Mittal, 2010 (2) CCC 831 (Delhi), made
following observations: -
“8. The question which comes up for consideration is as to what the
expression 'amount of money' means in a case where the admitted
liability of the drawer of the cheque gets reduced, on account of part
payment made by him, after issuing but before presentation of cheque
in question. No doubt, the expression 'amount of money' would mean
the amount of the cheque alone in case the amount payable by the
drawer, on the date of presentation of the cheque, is more than the
amount of the cheque. But, can it be said the expression 'amount of
money' would always mean the amount of the cheque, even if the
actual liability of the drawer of the cheque has got reduced on account
of some payment made by him towards discharge of the debt or
liability in consideration of which cheque in question was issued. If it
is held that the expression 'amount of money' would necessarily mean
the amount of cheque in every case, the drawer of the cheque would be
required to make arrangement for more than the admitted amount
payable by him to the payee of the cheque. In case he is not able to
make arrangement for the whole of the amount of the cheque, he would
be guilty of the offence punishable under Section 138 of Negotiable
Instruments Act. Obviously this could not have been the intention of
the legislature to make a person liable to punishment even if he has
made arrangements necessary for payment of the amount which is
actually payable by him. If the drawer of the cheque is made to pay
more than the amount actually payable by him, the inevitable result
would be that he will have to chase the payee of the cheque to recover
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the excess amount paid by him. Therefore, I find it difficult to take the
view that even if the admitted liability of the drawer of the cheque has
got reduced, on account of certain payments made after issue of
cheque, the payee would nevertheless be entitled to present the cheque
for the whole of the amount, to the banker of the drawer, for
encashment and in case such a cheque is dishonoured for wants of
funds, he will be guilty of offence punishable under Section 138 of
Negotiable Instrument Act.
9. I am conscious of the implication that the drawer of a cheque
may make payment of a part of the amount of the cheque only with a
view to circumvent and get out of his liability under Section 138 of
Negotiable Instrument Act. But, this can easily be avoided, by payee of
the cheque, either by taking the cheque of the reduced amount from the
drawer or by making an endorsement on the cheque acknowledging the
part payment received by him and then presenting the cheque for
encashment of only the balance amount due and payable to him. In
fact, Section 56 of Negotiable Instrument Act specifically provides for
an endorsement on a Negotiable Instrument, in case of part payment
and the instrument can thereafter be negotiated for the balance amount.
It would, therefore, be open to the payee of the cheque to present the
cheque for payment of only that much amount which is due to him
after giving credit for the part payment made after issuance of cheque.
12. Therefore, a notice of demand which requires the drawer of the
cheque to make payment of the whole of the cheque amount, despite
receiving a substantial amount against that very cheque, much before
issue of notice, cannot be said to be a legal and valid notice envisaged
in Section 138(b) of Negotiable Instrument Act. The expression amount
of money used in Section 138(b) of Negotiable Instrument Act, to my
mind, in a case of this nature would mean the amount actually payable
by the drawer of the cheque to the payee of the cheque. Of course, if
the payee of the cheque makes some demands on account of interest,
compensation, incidental expenses etc, that would not invalidate the
notice so long as the principal amount demanded by the payee of the
cheque is correct and is clearly identified in the notice. When the
principal amount claimed in the notice of demand is more than the
principal amount actually payable to the payee of the cheque and the
notice also does not indicate the basis for demanding the excess
amount, such a notice cannot be said to be a legal and valid notice
envisaged in Section 138(b) of Negotiable Instrument Act. In such a
case, it is not open to the complainant to take the plea that the drawer
of the cheque could have escaped liability by paying the actual amount
due from him to the payee of the cheque. In order to make the notice
legal and valid, it must necessarily specify the principal amount
payable to the payee of the cheque and the principal amount demanded
from the drawer of the cheque should not be more than the actual
amount payable by him, though addition of some other demands in the
notice by itself would not render such a notice illegal or invalid.
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25. It is matter of record that at the time of framing of notice under
Section 251 Cr.P.C., appellant admitted that cheques bore his
signature, but at the same time he also took plea that other
particulars were not filled by him. Appellant admitted that
demand notice was delivered at his home and he took plea that he
did not receive it because he was not present at his home at that
time. Apparently with delivery of demand notice at his correct
address, this notice is presumed to be served upon appellant
therefore, his presence at the relevant time of delivery is
immaterial. For such reasons, the answers given by the appellant
during his cross-examination to say that he did not receive any
legal notice from the complainant, cannot be given any serious
attention. This is the reason that I have omitted to treat the aspect
of service of legal demand notice, as an issue involved in this
appeal.
26. In his plea of defence at the stage of notice u/s. 251 Cr.P.C.,
appellant pleaded that he had taken loan of Rs.2 lacs from Mr.
Sanjay Sharma through Mr. Satish Sharma and that he had no
relation with the complainant. Thus, I have to analyse the
evidence on the record, in the background of afore-said plea of
defence taken by appellant.
27. Complainant in his complaint and affidavit pleaded that he had
friendly relations with the appellant. According to complainant,
appellant approached him in January 2021 for a personal loan of
Rs.7 lac and he gave loan of Rs.7 lac to the appellant on
04.01.2021 for the period of one year, after arranging the funds
from some of the relatives and his own arrangements. Such plea
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of the complainant denotes that there was no middle man
between him and the appellant and that complainant and
appellant both shared direct relations with each on friendly terms,
on the basis of which complainant was persuaded to pay afore-
said amount of Rs.7 lac as loan to the appellant. However,
appellant had been denying any relation with complainant since
beginning. Appellant cross-examined complainant/CW-1. In his
cross-examination, complainant deposed that he knew appellant
for last six years. He further deposed that Sanjay was his son and
Satish was his brother. This time he modified his stand to say that
appellant approached him for the loan in December 2020 (in
complaint and affidavit, it was mentioned to be January 2021)
and that he had given the loan on 04.01.2021. As per his further
deposition, complainant gave this amount of Rs.7 lac in cash to
the appellant after arranging this amount. He had taken Rs.1.5 lac
each from his brothers Mr. Satish Sharma and Mr. Sushil Sharma
and Rs. 1 lac each from his sons Mr. Mohit Sharma and Mr.
Sanjay Sharma. He had Rs.2 lacs with him in cash from his dairy
business. At the time of giving loan to the appellant, all the afore-
said persons were present. It has also come in the cross-
examination of complainant that no receipt or any other kind of
document was prepared at the time of giving amount of Rs.7 lac
to the appellant.
28. The statutory presumptions can be rebutted on the basis of
circumstances arising out of evidence and case put up by the
complainant also. As per contention/plea of complainant, both
the cheques were given by appellant after lapse of one and half
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year from 04.01.2021. Complainant pleaded that he had
demanded the amount of loan from the appellant and then
appellant issued both the cheques in question after putting his
signature. If this plea of complainant is appreciated on the
parameters of probability and natural course of action on the part
of a person, then I find that there was no need to issue two
cheques in the sum of Rs.3.5 lacs each. Each cheque leaf was
valid for amount up to Rs.10 lac. Therefore, if appellant had to
pay Rs.7 lac, then he would have issued one cheque for the sum
of Rs.7 lac itself. However, it was not so done. Appellant has
taken plea that both these cheques were taken as security. Here it
is relevant to refer to deposition of complainant regarding filling
of these cheques. Complainant deposed that these cheques were
filled by his son Mr. Sanjay in the presence of his family
members. He also deposed that at that time appellant was not
present there. This goes on to show that blank cheques were
taken from the appellant, which were filled subsequently on the
back of appellant. Why it was so required to fill two cheques in
the absence of appellant? This question does not find any answer
from the testimony or case of the complainant. I am conscious of
the law that a person, who is holder of the cheque in due course,
is entitled to fill a blank signed cheque. Therefore, a blank
cheque does not become invalid. However, aforesaid situations
are not referred by me, to check the validity of the cheques.
These situations have been referred to assess the natural conduct
of the parties and probability of the existence of the scenario as
depicted by the complainant. The given situations are more
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compatible with the plea taken by the appellant that they were
given and taken as security. The case set up by
prosecution/complainant that both these cheques were issued by
appellant on demand of complainant, in order to pay loan amount
of Rs.7 lac, does appear unnatural in the backdrop of above-
mentioned situations.
29. The courts have recognized that for rebutting the statutory
presumptions, accused is not expected to lead negative evidence.
This is not possible for any person to lead a negative evidence.
On the other hand, Section 106 of Indian Evidence Act (which
was in operation at the relevant time), mandated that a fact within
personal knowledge of a person is to be proved by that person.
Therefore, if there was actually such a strong friendly relation
between complainant and the appellant, then it was for the
complainant to prove this fact because appellant was not
expected to lead any evidence to show that he did not have any
such friendly relation or transaction with the complainant.
Similarly, if actually an amount of Rs.7 lac was given as loan,
then quantum of such debt/loan being extended to appellant, was
to be proved by the complainant.
30. The standard of rebutting the statutory presumptions is based on
the preponderance of probability. What an accused is expected to
show, is to justify possession of cheque bearing his signature
with the complainant and to show absence of any liability
towards the complainant. The first part may require some
evidence on the part of the accused, but the second part is
something for which an accused can only deny having such
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transaction. The relevant facts to show existence of alleged
transaction, remain within personal knowledge of complainant
and therefore, the transactions are to be proved by complainant
only.
31. In the present case, complainant himself deposed that Mr. Sanjay
was his son and he had filled the cheques. Appellant had taken
plea of taking loan of Rs.2 lac from Mr. Sanjay through Mr.
Satish Sharma, even before the complainant had tendered his
affidavit in evidence and himself for cross-examination.
Complainant, was thus, well aware of the plea of defence. Still,
complainant did not produce any other witness or evidence to
establish the aforesaid facts, which could be within his personal
knowledge only, i.e. the fact of having good friendly terms with
appellant, taking money from different family members, their
respective sources and payment of the same in the presence of
such family members to the appellant. On the other hand, it was
very much possible that if two cheques were taken by Mr. Sanjay
(son of the complainant) from the appellant as security, he would
have passed on these cheques to the complainant and the
amounts were filled in as per their choice, rather than existing
debt of the appellant.
32. Obviously, since no document was prepared, therefore, even
appellant could not be expected to produce any documentary
evidence in respect of his loan transaction of Rs.2 lac with Mr.
Sanjay. The burden upon complainant is heavier than the burden
cast upon an accused to rebut the statutory presumptions.
Therefore, appellant could not have been expected to come up
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with some stronger piece of evidence than the complainant relied
upon. In my opinion, appellant had discharged his onus to rebut
the statutory presumptions in order to show as to how could the
cheques with his signature came into the hands of the
complainant. But complainant failed to discharge his onus to
prove lending amount of Rs.7 lac (which was not a small
amount) to the appellant, beyond reasonable doubts.
CONCLUSION & FINDINGS
33. In view of my foregoing observations, discussions and findings,
the impugned judgment of conviction dated 02.09.2024 and order
on sentence dated 05.09.2024 are set aside. Appeal is allowed
and appellant is acquitted of the charges levelled against him in
this case.
34. FDR in the sum of Rs.1,64,000/- as furnished by appellant before
this court be released to appellant.
File of appeal be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA)
today on 04.11.2024 ASJ-03 (North- East)
(Judgment contains 20 pages) Karkardooma Courts/Delhi
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