The importance of evidence and consistency in statements in cases involving dishonoured cheques under Section 138 of the Negotiable Instruments Act.

S.P. GARG, J.

1. Challenge in this revision petition is a judgment dated 02.03.2016 of learned Additional Sessions Judge in Crl.A.No.60/2015 by which judgment dated 27.08.2015 and sentence order dated 28.10.2015 in CC No.79/1/14 instituted under Section 138 Negotiable Instruments Act were upheld. The petition is contested by the complainant/respondent.

2. I have heard the learned counsel for the parties and have examined the file. Admitted position is that a complaint case under Section 138 Negotiable Instruments Act was instituted by the respondent against the petitioner. In the complaint, the respondent averred that in the discharge of legally enforceable liability, the petitioner had issued a cheque for the sum of Rs.21.5 lacs bearing No 978785 dated 28.03.2010 drawn on Syndicate Bank, Dev Nagar, New Delhi in his favour. On presentation, the cheque was dishonoured due to ‘insufficient funds’. Despite issuance of legal notice dated 31.5.2010, the petitioner failed to pay the amount within the stipulated time. The respondent examined himself as CW-1. In 313 Cr.P.C. statement, the petitioner denied issuance of the cheque in question. He examined DW1 (Deepak Jain) in defence. The trial resulted in his conviction. The appeal preferred against the conviction did not find favour before the appellate court and was dismissed.

3. Learned counsel for the petitioner urged that the impugned orders cannot be sustained as the Trial Courts overlooked the crucial point if the respondent had paying capacity to advance Rs.21.50 lacs to the petitioner. No such amount was reflected by the respondent in the Income Tax Returns. He, being a petty newspaper vendor, did not have financial capacity to give huge loan to the petitioner. It was further urged that the petitioner at the time of taking a loan of Rs.3.5 lacs from the respondent in 2007, had issued a blank cheque as a ‘security’. The said loan was repaid in 2009 but the respondent did not hand over the cheque on the pretext that it was lost. The said cheque has been misused.

4. Learned counsel for the respondent urged that the courts below have given plausible reasons to base conviction and there are no sound reasons to disturb the concurrent findings.

5. Admitted position is that both the petitioner and the respondent were acquainted with each other and were childhood friends; they were neighbours too. It has come on record that there used to be financial transaction/dealings between the two prior to the transaction in question. In response to the notice under Section 251 Cr.P.C. dated 1.5.2012, it was the defence of the petitioner that he had taken a loan of Rs.3.5 lacs from the complainant in June-July, 2007. In lieu of granting of loan, the complainant had obtained the impugned blank signed cheque and an affidavit from him. The loan was granted at a monthly interest @ 5% and the interest was paid upto July, 2009. It could not be paid subsequently due to loss in the business. He, thereafter, tried to settle the dispute with the complainant but in vain. Apparently, there was transaction between the petitioner and the respondent way back in 2007.

6. The respondent filed his evidence by way of affidavit (Ex.CW-1/A) and reiterated the version given in the complaint. In the cross-examination, he admitted that he was a newspaper vendor for the last about eight years. He had rented a work shop to work there as a gold smith. He elaborated that the petitioner had demanded Rs.35,00,000/-but he was able to arrange Rs.21.50 lacs from his relatives and had given it to the petitioner without interest. No written agreement/document regarding payment of Rs.21.50 lacs was prepared/executed. He further admitted that this amount was not reflected in the Income Tax Returns. He denied the suggestion that no such payment was given to the petitioner. Suggestion was given that the payment of Rs.3.50 lacs was given in 2007 and a blank cheque was issued in lieu of it.

7. On perusal of the entire testimony of th