Satish Kumar vs State Nct Of Delhi & Anr
2013 Latest Caselaw 3384 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.L.P. 95/2006

                                                     Decided on 01.08.2013

IN THE MATTER OF :
SATISH KUMAR                                                 ..... Petitioner
                        Through: Mr.Jitin Sahni, Advocate



                       versus

STATE NCT OF DELHI & ANR                               ..... Respondents
                      Through: Mr.Naveen Sharma, APP for State
                      Mr.Arun Aggarwal, Advocate for R-2

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI



HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner/complainant

under Section 378 Cr.PC craving leave to assail the judgment dated

28.3.2006 passed by the learned ASJ in Crl.A. 3/2006, whereby the order on

conviction dated 6.12.2005 and order on sentence dated 18.1.2006 passed

by the learned MM in CC No.136/1/02 were set aside and the respondent

No.2 was acquitted of the offence under Section 138 of the of the Negotiable

Instruments Act.

2. The brief facts of the case as set out by the petitioner in the complaint

filed by him under Section 138 of the Negotiable Instruments Act(for short

`the Act') are that in the month of December 2001, he had advanced a loan

of `72,000/- to the respondent No.2 and the latter had promised to return

the loan amount in the first week of January 2002. The respondent No.2 had

allegedly issued a cheque bearing No.958882 dated 4.1.2002 for a sum of

`72,000/- drawn on Bank of Maharashtra, Vivek Vihar in favour of the

petitioner towards the discharge of his liability. However, as per the memo

dated 15.3.2002, issued by the bankers of the petitioner, when he had

presented the said cheque for encashment, the same was dishonoured and

returned on account of insufficient funds. Thereafter, the petitioner had

issued a legal notice dated 26.3.2002 to the respondent No.2 demanding the

aforesaid amount. Respondent No.2 had replied to the said legal notice and

had stated that the cheque in question had been stolen and he had lodged a

complaint with the local police in that regard and further, that he had

informed his bankers to stop payment of the said cheque by sending a

written intimation to that effect.

3. The petitioner then filed a complaint the against the respondent under

Section 138 of the Act on 27.4.2002. In the course of the trial, the

complainant had examined himself as CW-1 and the clerk of Bank of

Maharashtra as CW-2. The accused had examined himself as DW-1. He had

also examined two other witnesses, Sh.Dewan Singh, clerk from Bank of

Maharashtra as DW-2 and his wife, Smt.Anita Modi, as DW-3. After

examining the evidence brought on record and hearing the counsels for the

parties, the learned MM had allowed the complaint of the petitioner vide

judgment dated 6.12.2005 and had convicted the respondent No.2 for the

offence under Section 138 of the Act. As per the order on sentence, the

respondent No.2 was awarded simple imprisonment for a period of one year

and directed to pay compensation of `72,000/- to the petitioner, apart from

paying him litigation charges of `2,000/-

4. Aggrieved by the aforesaid order of conviction and order on sentence,

the respondent No.2 had preferred an appeal. By the impugned judgment

dated 28.03.2006, the appellate court arrived at the conclusion that the

petitioner/complainant had not been able to prove his case against the

respondent No.2 beyond reasonable doubt having failed to establish that

there was any consideration for the cheque issued by the respondent No.2 in

favour of the petitioner and further, on account of the failure to prove the

three sources of the amount that had allegedly been advanced as loan to

the respondent No.2. Resultantly, the impugned order dated 6.12.2005

passed by the learned MM was set aside by the appellate court and the

respondent No.2 was acquitted for the offence under Section 138 of the Act.

Aggrieved by the aforesaid acquittal order, the petitioner/complainant has

filed the present petition for seeking leave to file an appeal.

5. Learned counsel for the petitioner/complainant has assailed the

impugned judgment on two counts. The first ground taken by him is that

the appellate court had erred in overlooking the observations made by the

learned MM in his judgment to the effect that there were some business

dealings between the petitioner and the respondent No.2 and therefore,

there was enough reason to believe that the cheque in question had been

issued by the petitioner in favour of the respondent No.2 for valuable

consideration. The second plea taken by the learned counsel is that the

respondent no.2 had failed to explain that if the cheque in question had been

lost in November 2001, then why were directions issued by the respondent

to his bankers to stop payment thereof as late as in January 2002.

6. This Court has heard the counsels for the parties and carefully perused

the impugned judgment in the light of the evidence placed before the trial

court and the arguments advanced.

7. It is a settled legal position that under the scheme of Negotiable

Instruments Act, a statutory presumption has been created in favour of the

holder of the negotiable instrument in due course. Section 139 stipulates

that the Court shall presume liability of the drawer of the cheque for the

amount for which the cheque is drawn and Section 118 envisages that

unless the contrary is proved, it shall be presumed that the negotiable

instrument including a cheque has been drawn for consideration [Ref:

(2001) 6 SCC 16 entitled Hiten P. Dalal vs. Bratindranath Banerjee]

8. Although the Court is under an obligation to raise the presumption

contemplated under Sections 118, 138 and 139 in every case, where the

factual basis for raising the presumption has been established by the

complainant, the accused is required to raise a probable defence or rebut

such a presumption by leading evidence or bringing such facts on record in

the cross-examination of the complainant that could make the latter's case

improbable. For doing so, it is not necessary for the accused to disprove the

existence of consideration by way of direct evidence. The standard of proof

has been held to be preponderance of probabilities and the inference of

preponderance of probabilities can be drawn not only from the materials that

have been placed on record, but also by reference to the circumstances upon

which the accused relies. (Ref: AIR 1999 SC 1008 entitled Bharat Barrel

and Drum Manufacturing Company vs. Amin Chand Payrelal) If the accused

is proved to have discharged the initial onus of proof placed on him by

showing that the existence of consideration was improbable or doubtful or

illegal, then the onus will shift back to the complainant who will then be

under an obligation to prove it as matter of fact and failure to do so will

disentitle him to any relief on the basis of the negotiable instrument.

9. Records reveal that the appellate court has overturned the order of

conviction dated 06.12.2005 passed by the learned MM by relying on the

deposition of the clerk from Bank of Maharashtra, who was summoned by

both, the petitioner/complainant as CW-2 as also the respondent

No.2/accused as DW-2. The aforesaid witness had deposed on 18.01.2002,

that a letter had been received by the bank from the respondent No.2 much

prior to 15.3.2002, the date of dishonour of the cheque, requesting inter alia

that payment of the cheque in question be stopped. In his cross-

examination, CW-2 had explained that as per the software installed in the

bank computer, if there is sufficient balance in the account of an account

holder only then are the stop payment instructions regarding a particular

cheque followed by the computer. But in case the funds are already

insufficient, then the computer will not issue stop payment instructions.

When CW-2 was summoned as a defence witness by the respondent

No.2/accused, and he appeared as DW-2, he had admitted in his deposition

that the bank could not trace out another letter dated 3.2.2002 issued by

the respondent No.2 calling upon it to stop payment of the cheque dated

03.03.2002 but the said witness had admitted the copy of the said letter

marked as DW-1/D and he had stated that payment of the disputed cheque

was stopped by the bank, and a sum of `10/- was deducted from the

account of the respondent No.2 for stopping the payment. The statement of

account of the respondent No.2 showing the aforesaid entry is marked as

DW-2/B.

10. Taking into consideration the deposition of the clerk from the bank

(CW-2 and DW-2), the appellate court arrived at the conclusion that there

were sufficient funds in the account of the respondent No.2 on the date,

when the cheque in question was presented for encashment and that being

the position, it could not be stated that the cheque was returned on the said

date due to insufficiency of funds. The appellate court also took into

consideration the legal notice dated 26.03.2002 (Ex.CW1/C) issued by the

petitioner/complainant to the respondent No.2 demanding payment of the

sum of `72,000/- and the reply to the said notice sent through the

respondent No.2's counsel (Ex.DW1/H). In his reply, the respondent No.2

had duly stated that intimation of the disputed cheque going missing had

been conveyed to his banker vide letter dated 18.01.2002 and a reminder

had also been issued on 03.02.2002 and besides the above, a report in this

regard was lodged with Police Station: Surya Nagar, Ghaziabad. The

aforesaid explanation answers the objection taken by the counsel for the

petitioner/complainant that the respondent No.2 had failed to explain that if

the cheque in question had been lost in November, 2001 then why were

instructions issued by him to his banker to stop payment of the said cheque

in January, 2002. Evidence on record reveals that appropriate instructions

were issued by the respondent No.2 to his banker for stopping the payment

of the cheque in question well before the legal notice demanding payment

was issued by the petitioner/complainant on 26.03.2002 and further, CW-

2/DW-2 had also confirmed the fact that there were sufficient funds in the

account of the respondent No.2 on the date, when the cheque in question

was presented to his banker for encashment, but the said cheque was

returned due to prior instructions issued by the respondent No.2 calling upon

his bank to stop payment in respect thereof.

11. Another relevant point that weighed in favour of the respondent No.2

was that his applications for summoning the police report with regard to the

missing cheque and one witness, Brahm Singh, before whom the alleged

loan was stated to have been given, were rejected by the trial court but at

the time of passing the judgment, the learned MM found himself in a

dilemma as to whether the petitioner had been able to prove his case

against the respondent No.2 beyond reasonable doubt. In any case, the

standard of proof for the accused is preponderance of probabilities as he is

not required to prove his defence beyond reasonable doubt [Ref: 2008

Crl.L.J. 1172 entitled Krishna Janardhan Bhat vs. Dattatraya G. Hegde and

(2009) 2 SCC 513 entitled Kumar Exports vs. Sharma Carpets]. As rightly

observed by the learned ASJ, once the burden of showing the existence of a

reasonably probable defence in his favour was discharged by the respondent

No.2, then the presumption under Section 118 of the Negotiation

Instruments Act disappears and in such circumstances, the case has to be

decided on the basis of the evidence adduced by both the parties on record.

12. The last contention of the counsel for the petitioner/complainant is

that the appellate court had erred in overlooking the observations made by

the learned MM in his judgment that there were some business dealings

between the parties and that was sufficient reason to believe that the

cheque in question had been issued by the respondent No.2 in favour of the

petitioner for valuable consideration. A perusal of the impugned judgment

reveals that in his cross-examination, the petitioner had revealed three

sources from where he had arranged the sum of `72,000/- for allegedly

extending a loan to the respondent No.2, which included a sum of `25,000/-

taken from his father, some money lying in his house and some money

withdrawn from his bank. However, CW-2, the clerk summoned by the

petitioner from the bank had produced the records that had failed to show

withdrawal of any amount by the petitioner from his bank at the relevant

time

13. The aforesaid fact was also noticed by the learned MM in his judgment,

but no adverse inference had been drawn against the petitioner on that

basis. However, the appellate court did notice this oversight by the trial

court and had observed that the petitioner had failed to produce any

document of his income or his financial position to show that he was capable

of advancing a friendly loan of `72,000/- to the respondent. The

petitioner/complainant having failed to prove that he had a financial capacity

to extend the loan amount to the respondent, the obvious conclusion would

then be that the respondent had succeeded in rebutting the presumption

under Section 118 (a) and Section 139 of the Negotiable Instruments Act

and he had successfully proved that the cheque in question had not been

issued in discharge of any legally enforceable debt or liability.

14. This Court finds some merit in the observation made by the learned

ASJ that the petitioner had not been able to prove any one of the three

sources of money though he had specifically mentioned the same in his

deposition. In fact failure on his part to prove any entry in his bank account

showing withdrawal of any amount during the relevant period created a

reasonable doubt about the consideration for the cheque in question. It is

relevant to note that all the defences that the respondent No.2 had taken in

his reply to the legal notice issued by the petitioner were put in the cross-

examinations of the petitioner (CW-1) and the clerk from the bank (CW-2)

but the petitioner had failed to produce any document of his income or

establish that he was capable of advancing a friendly loan of `72,000/- to

the respondent No.2. The appellate court was therefore justified in

observing that when the petitioner was fully aware of the defences taken by

the respondent No.2, he ought to have proved his case beyond reasonable

doubt.

15. It is in the aforesaid context that the learned ASJ had concluded that

the petitioner/complainant had failed to prove his case against the

respondent No.2 beyond reasonable doubt and therefore respondent No.2

ought to have been acquitted for the offence under Section 138 of the

Negotiable Instruments Act. This Court is inclined to concur with the

decision of the appellate court of overturning the judgment of the learned

MM. The said decision is based on a logical appreciation of the evidence

placed on record. In fact, the learned trial court had erred in concluding that

the respondent No.2 had not been able to discharge the initial onus placed

upon him to show the existence of a reasonably probable defence in his

favour. On the contrary, the records summoned by the respondent No.2

from his bank and the deposition of DW-2 (clerk from the Bank) were

themselves sufficient to hold that the respondent No.2 had been able to

raise a plausible defence and the notices issued by him to his banker on

18.1.2002 and 3.2.2002 much prior to issuance of the demand notice issued

by the petitioner on 26.3.2002, also substantiated the said defence.

However, once the burden of proof had shifted back to the

petitioner/complainant, he was unable to prove his case beyond reasonable

doubt by establishing the source of the alleged friendly loan extended to the

respondent No.2, thus disentitling him to the grant of relief on the basis of

the negotiable instrument.

16. In view of the aforesaid facts and circumstances, this court is of the

opinion that there is no illegality, arbitrariness, perversity or mis-

appreciation of facts in the impugned judgment, for granting leave to the

petitioner to assail the same in appeal. The leave petition is accordingly

dismissed.

HIMA KOHLI, J AUGUST 01, 2013 mk/sk/rkb