Delhi High Court
Ravinder Kumar vs Balbir Singh on 8 March, 2016
#2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08.03.2016
+ CRL. L.P. 543/2015 and Crl. MA No. 9928/2015
RAVINDER KUMAR ..... Petitioner
Through Mr. B.R. Kaushik, Advocate
versus
BALBIR SINGH ..... Respondent
Through None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
1. The present petition seeks leave to appeal under Section 378(4) of the
Code of Criminal Procedure, 1973 against the order of acquittal dated 11 th
February, 2015 passed by the learned MM (NI Act)-03, Dwarka Courts, New
Delhi.
2. The leave petitioner herein instituted a case being CC No. 6366/2014
against Balbir Singh, the respondent herein. It was the case of the
complainant/leave petitioner herein that he was the registered owner of two
Maruti Vans and one Tata Truck, which had been purchased by him to run a
transport business. It was alleged that Mr. Balbir Singh had been permitted
by the complainant/leave petitioner to operate the said vehicles commercially
and pay a fixed amount to the former i.e. the complainant/leave petitioner in
consideration thereof.
3. The subject post-dated cheques were issued by Balbir Singh, the
respondent herein, in consideration of the afore-stated business arrangement
between the parties. Upon the cheques being dishonoured on presentation,
the subject complaint came to be instituted by the complainant/leave
petitioner.
4. The learned MM (NI Act)-03, Dwarka Courts, New Delhi, after
perusing the evidence on record and hearing counsel for the parties, observed
as follows:-
"11. In the complaint as well as entire evidence of the
complainant, there is no mention about the time when the
two cheques in question were handed over to the
complainant. Further, while in the complaint as well as in
affidavit of evidence it was stated that accused handed
over the two cheques in question to the complainant to
show his bonafide and for the settled amount of monthly
rent for the three vehicles, there was no mention in either
the complaint or the affidavit of evidence as to how the
monthly rent in respect of the three vehicles was
calculated. It was only during his cross examination dated
25.04.2011 that it was stated by the complainant that rent
of the truck was Rs. 7,000/- per day. The complainant also
stated in his cross examination that drier Akam was
working with him till February 2008 and he gave the above
Tata truck to driver Akam when he was working with him.
Complainant also stated that on 02.07.2008 he gave the
above Tata truck to somebody else to drive. He further
stated that in February 2008 he gave the above Tata truck
to one person on contract basis.
12. In view of the above statements, the case of the
complainant that all the three vehicles were in the custody
of the complainant since March 2008 also becomes highly
doubtful. During his cross examination, complainant also
stated that the FIR regarding the incident (of theft) was
with respect to acts of the accused on 30.07.2008. Both
the cheques in question are dated 11.10.2008 and
16.10.2008 respectively. Now if, as per the complainant's
own case, he had filed the complaint against the accused
regarding theft of the Tata truck on 30.07.2008, the
relations between the complainant and the accused were
far from cordial as the accused was also being accused of
theft of the above truck. It was put to the accused during
his cross examination as DW1 that an FIR No. 97/2009 PS
KW Camp, Model Town dated 17.03.2009 u/s 406 IPC
had been registered against him and the accused accepted
the same. In these circumstances, it is very difficult to
believe that while on the one hand the complainant was
proceeding against the accused regarding theft of the truck,
on the other hand the accused gave two cheques in
question to the complainant.
13. Complainant has also admitted that he did not have
any document showing handling over of the above truck to
the accused. In view of the contradictory statements made
by the complainant regarding month of handing over of the
truck, the very handing over of the truck to the accused
seems highly doubtful. Further, while in the affidavit of
evidence as well as the complaint it was stated that the
cheques in question were towards settled amount of rent of
all the three vehicles, the accused categorically stated in
his cross examination dated 25.04.2011 that both the
cheques in question were given by the accused for
payment of Tata truck. This is another major contradiction
in the statement of the complainant and makes his entire
case doubtful. Complainant also stated during his cross
examination that he did not maintain any entry with
respect to the amount given by the accused to him and that
the accused maintained the account regarding the same.
The conduct of the complainant in not maintaining any
account regarding dues of the accused is also contradictory
to the conduct of a prudent man."
5. The learned MM followed the ratio of the decision of the Supreme
Court in Vijay vs. Laxman reported as (2013) 3 SCC 86 to the effect that
"when the case set up by the holder of the cheque itself was dubious, initial
presumption under Sections 118 and 139 of the NI Act itself comes to an
end" and concluded that accused- Balbir Singh had been able to successfully
rebut the statutory presumption.
6. Nothing has been urged before me on behalf of the leave petitioner to
rebut the finding arrived at by the learned MM (NI Act)-03, Dwarka Courts,
New Delhi in the order impugned herein.
7. In view of the foregoing, the present leave petition is devoid of merit
and is accordingly dismissed.
8. Pending application also stands disposed of.
SIDDHARTH MRIDUL, J
MARCH 08, 2016
SD
