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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Sharma, J.
Irshad Ahmad - Appellant
Versus
Sukhe Singh @ Mahesh Master - Respondent
Crl.A. No. 156 of 2017
Decided On : 11-12-2023
Code of Criminal Procedure - Appeal - Section 378(4) - Negotiable Instruments Act, 1988 - Section 138 - [139, 118] - The court discussed the statutory presumptions under Section 139 of the NI Act and the burden of proof on the accused to rebut the presumption. The court also highlighted the need for the complainant to prove the source of funds for issuing the cheque and the accused's right to raise a probable defense. The judgment emphasized that the accused need not prove his case beyond a reasonable doubt and can rely on preponderance of probabilities to rebut the presumption. The court also noted that the burden of proving the accused guilty beyond all reasonable doubt lies on the prosecution.
Fact of the Case:
The appellant alleged that he made payments to the respondent for the purchase of a plot, but the respondent sold the plot to others. The appellant demanded the return of his money, and when the respondent did not have the funds, he issued post-dated cheques. The cheques were returned dishonored, and the appellant initiated proceedings under Section 138 of the NI Act. The trial court acquitted the respondent due to lack of corroborative evidence and doubts about the appellant's financial capacity to make the payments.
Finding of the Court:
The court found that the appellant failed to establish the source of funds for the alleged payments and did not discharge the burden of proof required to draw the presumption under Sections 139 read with 118 of the NI Act. The court emphasized that the respondent successfully rebutted the presumption and proved that the cheques were not issued in discharge of any legally enforceable debt or liability. The court also highlighted the need for the complainant to prove the source of funds and the accused's right to raise a probable defense.
Issues: The issues revolved around the appellant's ability to prove the source of funds for the alleged payments, the respondent's rebuttal of the statutory presumptions under Section 139 of the NI Act, and the burden of proof on the complainant to establish the existence of a legally enforceable debt or liability.
Ratio Decidendi: The court emphasized that the accused need not prove his case beyond a reasonable doubt and can rely on preponderance of probabilities to rebut the presumption under Section 139 of the NI Act. The judgment highlighted the burden of proving the accused guilty beyond all reasonable doubt lies on the prosecution.
Final Decision: The court dismissed the appeal against the judgment of acquittal, stating that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The judgment emphasized that the presumption of innocence in favor of the accused is reinforced by the order of acquittal passed in his favor by the trial court.
Key Points: - The judgment discusses that the accused may rebut the presumption under Sections 139 read with 118 NI Act on the basis of preponderance of probabilities, not beyond reasonable doubt. (!) (!) (!) - It outlines the standards and approach of appellate review in appeals against acquittal, including the double presumption in favor of the accused and when interference is warranted. (!) (!) (!) (!) (!) (!) (!) - It emphasizes the need for the complainant to prove the source of funds and existence of a legally enforceable debt or liability; failure to prove funds undermines the presumption. (!) (!) (!) (!)
JUDGMENT
Amit Sharma, J. - The present appeal under section 378(4) of Code of Criminal Procedure, 1973 ('Cr.P.C.') has been preferred by the appellant assailing the judgment of acquittal dated 05.04.2016 in CC No.789/2015 passed by the learned ACMM-Shahdara District, Karkardooma Courts, Delhi whereby the respondent herein was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1988 ('NI Act').
Background
2. Briefly stated the facts of the present case, as alleged in the complaint, are as follows:-
i. The appellant and the respondent were already acquainted before the complaint was filed. The respondent used to run a business in property dealing and selling plots in Delhi and Ghaziabad. In the first week of June 2007, the appellant contacted the respondent for the purchase of a plot. A deal was entered into between the parties for the purchase of a plot of land for a sum of Rs. 2,07,500/-.
ii. It is the case of the appellant that he had made payment of the abovementioned amount to the respondent 'all in cash' on three different occasions, i.e., Rs. 1 lakh on 07.06.2007, Rs. 50,000/-on 25.06.2007, Rs. 57,500/- on 07.07.2007. However, after these payments were made by the appellant when he visited the site of the plot, it came to his knowledge that the respondent had already sold the said plot to other people and they were quarreling with the respondent.
iii. Thereafter, the appellant demanded that the respondent return his money, which was agreed to by the latter.
iv. The appellant has averred that the respondent did not have money at his disposal at that point in time and he issued four post-dated cheques in the discharge of his legal liability towards the return of the money. All four cheques were drawn in the name of the appellant - cheque no. 690665 for a sum of Rs. 50,000/- dated 30.01.2009; cheque no. 690668 for a sum of Rs. 50,000/- dated 30.01.2009; cheque no. 680666 for a sum of Rs. 50,000/- dated 27.02.2009 and cheque no. 680667 for a sum of Rs. 50,000/- dated 30.03.2009.
v. Cheques no. 680665 and 680668 were returned dishonored vide return memos dated 08.05.2009, cheque no. 680667 was returned dishonored vide return memo dated 04.04.2009 and cheque no. 680666 was returned dishonored vide return memo dated 28.02.2009, due to 'insufficient funds'.
vi. Thereafter, the respondent asked the appellant to deposit the cheques again in the first week of June 2009, saying that he would arrange for funds by then.
vii. Accordingly, the appellant deposited the cheques again, however, all four of which were returned dishonored due to 'insufficient funds,' vide return memo dated 03.06.2009.
viii. The appellant sent a legal notice dated 06.06.2009 calling upon the respondent to make these payments but no response was given by the respondent person to the same.
ix. Upon not receiving the cheque amounts, the appellant initiated the proceedings under Section 138 of the NI Act before the Court of learned ACMM (Shahdara), Karkardooma Courts, Delhi dated 11.07.2009.
3. The learned Magistrate, after going through the averments made in the complaint issued summons to the respondent. The respondent thereafter appeared in pursuance of a summons issued to him and in his statement under section 251 of the Cr.P.C., pleaded innocence, and claimed trial.
4. During the trial, the appellant to prove his case, examined himself as CW-1 and reiterated the contents of his complaint in his evidence. He also examined his bank account statement (CW-2/A) which was produced by the clerk of the bank (CW-2). On the other hand, the respondent had not examined himself as a witness however, he examined Mr. Manoj Kumar (DW-1) as his sole defence witness, who stated that the appellant had taken the cheques from him on the pretext that the accused had authorized him to receive those cheques.
5. On appreciation of evidence, the learned Magistrate held that the crossexamination of the appellant did not inspire confidence hence, the same could not
The main legal point established in the judgment is the significance of the accused raising a probable defense to rebut the presumption under Section 139 of the N.I. Act, and the requirement for the ....
The main legal point established in the judgment is the presumption under Section 118 and Section 139 of the Negotiable Instruments Act, the burden of proof on the accused to rebut the presumption, a....
The presumption of debt under Section 139 of the Negotiable Instruments Act is not rebutted by mere denial; the accused must provide credible evidence to support their defense.
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