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DELHI HIGH COURT
Suresh Kait, J.
S.S. Chouhan —Appellant
versus
State and Anr. —Respondents
Crl. L.P. No. 164/2012
Decided on 23.3.2012
IMPORTANT POINT
Presumption of innocence as human rights and doctrine of reverse burden introduced by Section 139 should be delicately balanced.
Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Appeal against acquittal—An accused for discharging burden of proof placed upon him under a statute need not examine himself—He may discharge his burden on the basis of materials already brought on records—An accused has constitutional right to maintain silence—Standard of proof on part of an accused and that of prosecution in a criminal case is different—Whereas prosecution must prove guilt of accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is “preponderance of probabilities”—Inference of preponderance of probabilities can be drawn not only from materials brought on records by parties but also by reference to circumstances upon which he relies. (Paras 23 and 25)
(B) Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Appeal against acquittal—A statutory presumption has evidentiary value—Question as to whether presumption whether stood rebutted or not, must be determined keeping in view other evidences on record—For said purpose stepping into witness box by appellant is not imperative—In a case of this nature, where chances of false implication cannot be ruled out, background fact and conduct of parties together with their legal requirements are required to be taken into consideration—In determining whether a reverse burden is compatible with presumption of innocence regard should also be had to pragmatics of proof—Court will not allow pragmatic considerations to override legitimate rights of defendant— Presumption of innocence as human rights and doctrine of reverse burden introduced by Section 139 should be delicately balanced—Such balancing acts would largely depend upon factual matrix of each case, materials brought on record and having regard to legal principles governing the same—Criminal Leave Petition dismissed. (Paras 21 and 22)
Crl. M.A. No. 3666/2012 (exemption)
Suresh Kait, J.— Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.
Crl. L.P. No. 164/2012
1. Vide the instant petition, petitioner has sought leave to appeal to the appellant against the judgment dated 04.01.2012, whereby respondent No. 2 has been acquitted from the complaint being filed by the petitioner under Section 138 N.I. Act.
2. Learned counsel appearing on behalf of the appellant submits that the Trial Court has not considered the evidence on record, which is in favour of the appellant, and has passed the impugned order on presumptions and conjecture. The respondent No.2/accused had to prove his innocence not the petitioner/complainant his complaint and allegations therein. Therefore, the impugned judgment is perverse and bad in law.
3. As recorded by ld. Trial Judge In its impugned judgment mentioned above, in March 2007, the respondent no. 2 had approached the petitioner and sought a loan of Rs. 80,000 for the marriage of his daughter. Keeping in view, the cordial relationship between petitioner and respondent No. 2 and the assurance of respondent No. 2 that the loan would be returned, shortly, accordingly petitioner had advanced a loan of Rs. 80,000 to respondent No. 2, by way of cash on 23.3.2007.
4. After receiving the loan, respondent No.2 had delayed the repayment of the loan on one pretext or the other. In 2009, when the petitioner once again approached respondent No. 2 for repayment of the loan, he had handed over a cheque bearing No. 865164 dated 23.3.2009, drawn on State Bank of India, Rail Bhawan, New Delhi to the petitioner.
5. On presentation, the said cheque was dishonoured. Accordingly, petitioner sent legal notice to the respondent No. 2 on 31.3.2009. Thereafter, filed the complaint before the trial court.
6. During trial, petitioner/complainant examined himself by way of his affidavit Ex. CWlA and documents, Ex. CW1/1 to Ex. CWl/4. In cross-examination, petitioner stated that he knew respondent No. 2 since the past 20 years. The petitioner also admitted that he had retired from RBI in 2004; that he had filled up the details •viz. amount and date in the cheque no. 865164; that he had no proof of granting the loan of Rs. 80,000 to the respondent No. 2 and that earlier he had filed a case against Sh. Rajesh Kanojia for Rs. 1 lac and compromised with him after the passing of decree, by accepting Rs.56-58,000 in lieu of Rs. 1 lac.
7. The petitioner denied that he had received the cheque 865164 from the accused in lieu of a loan of Rs.12,500 granted to respondent in 2005. The petitioner further denied that he was in the business of money lending; that he had in the habit of harassing his creditors by refusing to return back the promissory notes/blank cheques signed by them; that he had withdrawn any amount from the account of respondent No 2 at RBI Staff Co-Operative Thrift and Credit Society Ltd. and further denied that he did not serve any demand notice to respondent No. 2 and also denied that he received Rs. 33,000 in lieu of Rs.12,500 and that he falsely implicated respondent No. 2 in the present case.
8. During examination under Section 313 Cr.P.C., respondent No. 2 denied that he had issued any cheque mentioned above in favour of the petitioner. Also respondent No. 2 denied that he had been served with the legal notice dated 25.3.2009, Ex CWl/3 by way of registered post with acknowledgment due. Upon being asked to explain the filing of the present case against himself, the accused stated as under:
“It is a false case…
I am innocent and has been falsely implicated by the complainant in this case. I had given the signed blank cheque to the complainant and other details on the cheque was not filed by me. The complainant had withdrawn Rs.20,000 from the society of Reserve Bank Employees from my account out of which Rs. 12,500 remained balance on me. The cheque in question was given in lieu of the same the said amount. The
