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DELHI HIGH COURT
Suresh Kait, J.
Pawan Singhal - Appellant
Versus
Gauri shankar deora & Anr. - Resopndent
Crl.L.P.No. 228/2011 to Crl. L.P.232/2011
Decided On : 02-03-2012
Indian Penal Code, 1860 - Cheque Bounce - Section 138 NI Act, 1881 - [CHEQUE BOUNCE] - [Cheque Bounce Offences] - [Section 460/420 IPC, 1860, Section 138 NI Act, 1881] - The court discussed the provisions of Section 138 of the NI Act, emphasizing the necessity for the cheque to be drawn by the accused on an account maintained by him for the discharge of any debt or liability. The court also highlighted the presumption against the accused under Section 139 of the Act and the importance of proving the enforceable debt. The court's decision was influenced by the interpretation of these legal provisions and the failure to establish the accused's liability for the cheque bounce.
Fact of the Case:
The petitioner/complainant filed a complaint against the respondent/accused for cheque bounce offences under Section 138 NI Act, 1881 and Section 460/420 Indian Penal Code, 1860. The respondent/accused denied issuing the cheques and claimed trial.
Finding of the Court:
The trial court acquitted the respondent/accused based on the lack of evidence to prove the accused's liability for the cheque bounce. The court found discrepancies in the petitioner's claims and the evidence presented, leading to the dismissal of the petitions.
Issues: Dispute over the issuance and liability for the bounced cheques, the petitioner's financial capacity to lend the amount, and the credibility of the evidence presented.
Ratio Decidendi: The court emphasized the necessity for the cheque to be drawn by the accused on his account for the discharge of a debt or liability, the presumption against the accused under Section 139 of the NI Act, and the importance of proving the enforceable debt.
Final Decision: The court dismissed the petitions, upholding the trial court's decision to acquit the respondent/accused.
This is a criminal revision petition (Crl. L.P. Nos. 228-232/2011) filed by the complainant (Pawan Singhal) against the acquittal of the accused (Gauri Shankar Deora) in cheque bounce proceedings under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), originally also invoking Sections 406/420 IPC. (!) [11000474630001][11000474630021] The Delhi High Court dismissed the petitions, upholding the trial court's acquittal.[11000474630046][11000474630047]
The complainant, sole proprietor of M/s Sinco Technosys dealing in computer components with a showroom at Nehru Place, advanced "friendly loans" to the accused (his tenant in the same trade) and further to the accused's friend Ravinder on the accused's personal guarantee.[11000474630001][11000474630002] To discharge these liabilities, the accused allegedly issued 14 cheques totaling significant amounts, including four cheques (Nos. 833203-833206, each dated 02.08.2004 for Rs.25,000/-) drawn on his Punjab National Bank account (No. 21113) at Krishna Nagar, Delhi.[11000474630003][11000474630004][11000474630012] The cheques were presented on 05.08.2004 but dishonoured on 03.08.2004 with remarks "signatures differ" or "funds insufficient."[11000474630005] Bank inquiry confirmed the account belonged to the accused, and some cheques bore signatures in Ravinder's name allegedly forged by the accused.[11000474630006] Legal notice dated 28.08.2004 was sent, denied by the accused, leading to the complaint.[11000474630007]
The accused denied issuing the cheques or bearing liability, claiming they were issued by Ravinder Gupta despite being from his account, and pleaded not guilty under Section 251 CrPC after charges under Section 138 NI Act were framed (IPC charges dropped).[11000474630008][11000474630009][11000474630012][11000474630017]
The trial court acquitted, holding: - Section 138 requires cheque drawn by accused on his account for debt discharge—several cheques not drawn by accused (Ravinder's signatures), no proof of forgery by accused; complainant aware/improbable unaware.[11000474630022][11000474630025][11000474630026][11000474630027] - Complainant lacked capacity: prior notice (Mark A) showed accused's indebtedness/non-payment; past loans documented/high-interest, fresh loan undocumented/improbable; evasive/inconsistent testimony on funds source, low ITR income, no supporting docs.[11000474630030][11000474630032][11000474630033][11000474630034][11000474630035][11000474630040] - Multiple identical cheques suspicious for genuine discharge.[11000474630041] - Presumption rebutted; no enforceable debt proven.[11000474630020][11000474630040]
The High Court found no infirmity in acquittal: - Reiterated Section 138 essentials and rebuttable presumption under Section 139.[11000474630022][11000474630014] - Complainant financially incapable, contradictory evidence (complaint vs. testimony/docs), changed stands, no proof of debt/source.[11000474630045] - No evidence accused misused/forged signatures; defence version probable.[11000474630027][11000474630045] Petitions dismissed; no costs.[11000474630046][11000474630047]
This case underscores rigorous proof burdens in cheque bounce matters post-presumption, favoring acquittal where foundational debt/enforceability unproven despite account linkage.
1. Since the facts of all the petitions are similar, therefore I have decided to dispose of all the petitions by a common judgment.
2. The brief facts of the case are that petitioner filed a complaint against the respondent/accused for the offences punishable under Section 460/420 Indian Penal Code, 1860 and Section 138 NI Act, 1881 (herein after referred to as “the Act”) on the allegations that the petitioner/complainant was dealing in Computer components and is the sole proprietor of M/s Sinco Technosys and have a show room at Nehru Place.
3. The respondent/accused was the tenant of the complainant and was in the same trade. He was in need of money and the petitioner/complainant advanced friendly loan to him. After some time, respondent/accused also asked the complainant for the same favour to his friend namely Ravinder on his personal guarantee and took money on his name.
4. In order to discharge his liability and his friend, respondent/accused had issued fourteen cheques in total. The details of the four cheques are as under :
Cheque no.
Dated
Amount
833203
02.08.2004
Rs.25,000/-
833204
02.08.2004
Rs.25,000/-
833205
02.08.2004
Rs.25,000/-
833206
02.08.2004
Rs.25,000/-
5. All the cheques including four mentioned above were drawn on Punjab National Bank, Krishna Nagar, Delhi Branch with an assurance that the said cheques were given by him and Ravinder, would be honoured on presentation.
6. The said cheques were presented, but same returned dishonoured on 05.08.2004 with remarks “signatures differ” or “funds insufficient” vide memo dated 03.08.2004.
7. On enquiry from the Bank, it was revealed that the cheques in question belongs to the account of respondent/accused and he had issued the cheque with malafide and fraudulent intentions. On inspection of cheques, it also revealed that the signatures on some cheques were in the name of Ravinder, but put by the respondent/accused.
8. Petitioner/complainant accordingly sent legal notice dated 28.08.2004 to respondent/accused. Same was replied and respondent/accused denied his liability, leading up to the making of complaint with a view to prosecute and punish the respondent/accused for his having committed offences punishable under Section 406/420 Indian Penal Code, 1860 and Section 138 of the Act.
9. Vide order dated 16.07.2005, a notice of accusation under Section 251 of Cr.P.C. 1973 was framed against the respondent/accused whereby, he was charged with the commission of offence punishable under Section 138 of the Act only in respect of all the cheques. He did not plead guilty and claimed trial.
10. The respondent/accused denied having issued cheques and also denied that the cheques bear his signatures. At the time of recording of plea of respondent/accused, he had admitted having received the legal notice.
11. I here make it clear that on some cheques, signatures of respondent/accused were there, however he denied for any enforceable debt against him and issued in favour of the petitioner.
12. The petitioner/complainant examined himself as CW1 and during his examination, he tendered his affidavit along with documents Ex.CW1/A1 to CW1H.
13. The respondent/accused also examined under Section 313 Cr.P.C., wherein it is stated that all the cheques were issued by one Ravinder Gupta in favour of petitioner/complainant, although the account bearing no. 21113 whereupon the cheques were drawn, is in his name.
14. He further stated that witnesses have falsely deposed against him. In his defence, he examined three defence witnesses. During defence evidence, documents were also filed on behalf of respondent/accused.
15. Ld. Counsel appearing on behalf of the petitioner/complainant while relying upon the case of Rangappa vs. Sri Mohan, 2010 (5) SCALE 340, that the testimony of CW1 Mr. Pawan Singhal, petitioner/complainant and the documents tendered by him during h
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