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TMI Blog2017 (2) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... , and also to establish that he had delivered the cheque in question to Manoj Kumar. No document evidencing the alleged loan transaction with Manoj Kumar was produced by the accused. He did not produce his own accounts / ITR to show that he had reflected the so called loan taken by him from Manoj Kumar in his books. The statement of the accused is as vague, as could be. He gives no particulars of the amount of loan taken from Manoj Kumar; the date of the said loan transaction; the manner in which it was taken – i.e. whether in cash or through cheque; the dates(s) of its repayment, and; the manner of its repayment i.e. whether in cash or through cheque. Though the accused claimed that he had repaid the loan to Manoj Kumar, no document evidencing repayment of the loan was produced. The accused also did not explain as to why the cheque allegedly given to Manoj Kumar was, firstly, given in blank i.e. without name and, secondly, why it was not taken back at the time of repayment of the loan to Manoj Kumar. No notice or communication was issued by the accused to Manoj Kumar, recording that the loan had been repaid but the cheque not returned. The accused also did not stop payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had taken loan from one Manoj Kumar, which he had allegedly repaid. The accused had claimed that the cheque in question had been given to Manoj Kumar towards security, which had been misused by the complainant. Neither Manoj Kumar was produced, nor the taking of loan from Manoj Kumar was evidenced, much less, the return of loan was evidenced. It was not explained as to why the cheque was not taken back from the so-called Manoj Kumar when the loan taken from him was allegedly repaid, and why the accused took no steps if the cheque was not returned by Manoj Kumar even though the loan was allegedly repaid. 4. In my view, the present is a fit case for grant of leave as the impugned judgment appears to be laconic. Leave granted. Crl A. No............................./ 2017 5. Let the appeal be registered and numbered. 6. With the consent of parties, the appeal is taken up for hearing today itself. 7. The present appeal is directed against the judgment dated 28.04.2015 passed by the learned MM (S)-01, NI Act, Saket Courts in CC No.5206/01, whereby the respondent/ accused has been acquitted of the offence under Section 138 of Negotiable Instruments Act on the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein were completely burned in the year 2007. He denied to have ever approached the complainant to obtain a loan of ₹ 3 lacs with interest @ 18% p.a. He also denied the settlement set up by the complainant contained in the MOS. He also stated that he had never taken any loan from the complainant. He denied receipt of the legal notice. In answer to the last question, he made a statement that he had not issued the cheque in question to the complainant. He stated: It may be given by one Manoj Kumar to the complainant. I had taken a loan from Manoj Kumar which I had already repaid. I had given the cheque in question to Manoj Kumar towards security. It appears since the complainant and Manoj Kumar are from the same hometown, Manoj Kumar has provided my cheques alongwith promissory note to the complainant. Apart from the cheque in question there are other three cheques are in possession of complainant. In fact the complaint has liability of ₹ 3.50 lakhs towards me . 12. The Trial Court has acquitted the accused on the premise that the witnesses to Ex CW-1/1, CW-1/2 and CW-1/X had not been produced by the appellant. The complainant in his cross examination had stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced an amount of ₹ 3.00 lacs when the shop of the accused was gutted in fire. Thereafter he kept advancing amounts of ₹ 75,000/-, ₹ 80,000/- and ₹ 70,000/- to the accused at different intervals. 15. Learned counsel submits that the complainant had deposed that he was not earning for the last 3-4 years (when he deposed on 21.03.2014), and that he was totally out of job. He also stated that when the loan was provided to the accused I earned about ₹ 50,000/- per month excluding my expenses. I used to run my dairy shop and also worked as driver and had part time ice business . 16. Learned counsel submits that so far as Ex CW-1/1, CW-1/2 and CW1/X are concerned, the complainant had deposed: When the agreement was entered between me and the accused, Sanjay Sharma, Rajesher Roy were present in the market. Both are not operating in the market at present . 17. However, the Trial Court has selectively read the evidence and misconstrued the same. Learned counsel submits that at another place, the witness had stated: There was no other person present at the time of execution of MoU Ex. CW1/1 however the other shop keeper of the market were awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukesh Verma, though he claimed his name as Mukesh Kumar. He further submits that the complainant was not aware about the contents of his complaint, as well as the content of the document. He submits that in relation to Ex CW1/1, CW-1/2 and CW-1/X, the complainant had made contradictory and inconsistent statements. 22. Having heard learned counsels for the parties, perused the impugned judgment and gone through the testimonies relied upon by the parties as also the documents referred to, I am of the view that the impugned judgment is patently laconic, unsustainable in law, and deserves to be set aside. The approach of the Trial Court while rendering the impugned judgment is completely misdirected, and the Trial Court has failed to take into account the most relevant and germane aspects of the case. 23. First and foremost, the fact that the cheque has been signed by the accused is not denied by the accused. This itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration. The accused had claimed in his defence that the said cheque had been delivered to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. The accused also did not explain as to why the cheque allegedly given to Manoj Kumar was, firstly, given in blank i.e. without name and, secondly, why it was not taken back at the time of repayment of the loan to Manoj Kumar. No notice or communication was issued by the accused to Manoj Kumar, recording that the loan had been repaid but the cheque not returned. The accused also did not stop payment of the said cheque by issuing any communication to his bank contemporaneously. The stand taken by the accused that documents Ex CW-1/1 and CW-1/2 had been given to Manoj Kumar is also completely belied by a perusal of the said documents. Both these documents have been executed in favour of, and by reflecting the name of the complainant Mukesh Kumar, and not Manoj Kumar. Had the loan been taken from Manoj Kumar and the said document executed and delivered, the same would have been delivered in the name of Manoj Kumar and not Mukesh Kumar. Thus, the stand taken by the accused in his defence with regard to issuance of the cheque to secure a loan taken from Manoj Kumar, was not at all probabalised. Pertinently, in his statement under Section 313 Cr PC, the accused also claimed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is coherent and consistent. 30. The non filing of his ITR by the appellant during the relevant years does not lead to the creation of a doubt with regard to his financial capacity. Such a doubt may have been raised if there was no other cogent evidence to establish the loan transaction. But, since the loan transaction and outstanding liability was clearly evidenced by Ex. CW-1/1, CW-1/2 and CW-1/X, the omission of the appellant to file his ITR pales into insignificance for the present purpose. 31. On the aspect of the complainant not producing other witnesses, the complainant had frankly stated the fact which, unfortunately, is generally true. He had stated that other shopkeepers of the market are also aware that the accused had taken money from him. However, he expressed his inability to bring any person for giving evidence in court as nobody wants to get involved in others affair. 32. The minor discrepancy, if any, with regard to the year in which the shop of the accused was gutted in neither here, nor there. Such minor inaccuracies are known to creep in and are natural with passage of time in ones recollection of the events. 33. Reliance placed by counsel for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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