Kapil Sahani vs Santok Singh
2012 Latest Caselaw 1571 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. L.P. No. 36/2012

                                              Date of Decision : 06.03.2012

KAPIL SAHANI                                             ...... Petitioner
                                         Through: Mr. Rajesh Bhatia, Adv.

                                             Versus

SANTOK SINGH                                        ......             Respondent
                                         Through: None

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by the petitioner against

the judgment dated 03.10.2011 passed by Mr. Mukesh

Kumar, ACJ-Cum-ARC-North West. By virtue of which,

the learned Trial Court has held that the complainant has

failed to prove that the cheque in question was issued

against the liability, and therefore, dismissed the

complaint of the appellant and acquitted the

respondent/accused.

2. I have heard the learned counsel for the appellant and

have perused the judgment of the learned Trial Court.

3. Briefly stated the facts of the case are that the

respondent-accused was running in financial crises in his

business, and therefore, demanded a financial help by

way of a loan from the petitioner in the month of April,

2002 to the extent of Rs.5,00,000/- for a period of eight

or nine months. Since, the request was repeated time

and again, the present petitioner advanced a friendly

loan of Rs.5,00,000/- without any interest and the

respondent/accused handed over a post dated cheque

bearing no. 305931 dated 20.04.2003 drawn on

Syndicate Bank, Punjabi Bagh, New Delhi. It has been

stated that after expiry of nine months in December,

2002 when the respondent accused did not return the

friendly loan amount, the present petitioner was

constrained to present the cheque to its banker for

encashment. The cheque was for a sum of

Rs.5,00,000/- was dishonoured by the Oriental Bank of

Commerce, Sector-8, Rohini, Delhi on 19.06.2003. The

appellant approached the respondent and asked him to

clear the liability, which was not done by him.

Consequently, he sent a statutory demand notice and

filed a case under Section 138 of the Negotiable

Instruments Act. After adducing of pre summoning

evidence, the respondent-accused was summoned and

notice under Section 251 Cr.P.C. was framed against him

on 27.01.2007 to which the respondent-accused pleaded

not guilty. The present petitioner examined himself as a

sole witness in support of his case. Thereafter, the

statement of the accused under Section 313 Cr.P.C. was

recorded. The respondent-accused also examined two

defence witnesses in support of his defence. The

learned Magistrate after hearing the arguments analyzed

the evidence in the light of Section 138 and 139 of the

Negotiable Instruments Act and came to the conclusion

that as the present petitioner has admitted in his

examination-in-chief that cheque in question exhibited as

CW1/1 was handed over to him by way of security only,

and therefore, the Trial Court held that it would not

attract Section 138 of the Negotiable Instruments Act.

4. I have carefully considered the record and gone through

the judgment.

5. I find myself in agreement with the reasoning of the Trial

Court. The petitioner in his statement as well as in his

cross examination has testified in such a manner that it

does not inspire the confidence regarding the

truthfulness or the veracity to be attached to his

testimony. He had admitted that the respondent-

accused himself was not dealing with the present

petitioner. As a matter of fact, the respondent-accused

was having dealing with the father of the petitioner. He

has also stated that the cheque in question was issued to

the present petitioner by way of security, which had the

no. 305931 dated 20.04.2003 drawn on Syndicate Bank,

Punjabi Bagh, New Delhi. It is further admitted by the

complainant/petitioner that the amount of Rs.5,00,000/-

was given by way of interest free loan. This has not been

reflected in his books of account or in the income tax

return. Further the loan is given without any issuance of

any valid receipt or proof to the respondent/accused

clearly shows that it is very doubtful that the petitioner

had given any loan to the respondent/accused. On the

contrary, he has admitted in his cross-examination the

cheque in question was handed over to him by

respondent-accused only as a security. Since the

petitioner complainant has admitted in his examination-

in-chief that the cheque in question was received by him

only by way of a security that clinches the entire issue in

favour of the respondent-accused.

6. One of the fundamentals of prosecution under Section

138 of the Negotiable Instruments Act is that the cheque

which is dishonored must be issued in discharge of his

liability by the drawer while as in the instant case the

petitioner complainant himself has admitted that the

cheque was issued by way of having said so, if the

cheque was issued as a security certainly it could not be

treated as the one which is issued for discharge of his

liability, therefore, the learned Magistrate was right in

observing that the petitioner has been unable to prove

the guilt of the accused beyond reasonable doubt.

7. Accordingly, for the above-mentioned reasons, I do not

find any merit in the leave to appeal, and accordingly,

the same is rejected.

V.K. SHALI, J.

MARCH 06, 2012 KP