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TMI Blog2018 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... o show that the subject cheques were issued in the year 2009 – 2010. Respondent No. 1 failed to even show that he had demanded the return of the subject cheques, when he is alleged to have repaid the loan amount. Even the statutory demand notice was not responded to. Merely because a cheque book with printed date “___/____/200___” is used after 01.01.2010 would not invalidate the cheque or become a suspicious circumstance in itself. Clearly the reasoning of the Appellate Court on this count is also perverse and untenable. Petition allowed. - CRL.REV.P. 102/2016 - - - Dated:- 2-4-2018 - MR. SANJEEV SACHDEVA J. Advocates who appeared in this case: For the Petitioner: Mr. Upendra Tiwari, Advocate. For the Respondents: Ms. Indra Bhushan Goel, Adv. for R-1. JUDGMENT SANJEEV SACHDEVA, J. 1. The petitioner (complainant in the original complaint under Section 138 of the Negotiable Instruments Act) impugns order dated 26.09.2015 passed by the appellate court, whereby the appellate court has set aside the order of conviction dated 24.07.2015 and order on sentence dated 31.07.2015 and acquitted respondent no. 1. 2. The petitioner had filed a complaint under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a loan advanced by the petitioner but the petitioner was running a Committee and had failed to disclose this fact before the trial court. Further it is contended that the respondent no. 1 had repaid the loan amount and made a total payment of ₹ 2.70 lakhs and only an amount of ₹ 7000/- was due and payable and the subject cheques were issued blank and given as a security. There was no legally recoverable debt when the cheques were presented for encashment. The Petitioner had admitted two entries of deposit of ₹ 10,000/- in the account of the petitioner and also deposit by brother of Respondent No. 1 into his account and also deposits into the bank account of the wife and daughter of the petitioner. 8. It may be noticed that the trial court in the order of conviction noticed that the respondent no. 1 had admitted that the cheques in issue were from his account. He had even accepted the signatures on the cheques. The defence raised was that the Respondent No. 1 had repaid the amount taken as loan. Noticing the fact that the cheques were admittedly signed by respondent no. 1, the trial court raised the presumption in favour of the petitioner. The trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which loan was taken. He does not remember the date on which he has made payment to complainant by way of cash. In his examination in chief accused has stated that ₹ 70,000/- in cash was paid to the complainant through his brothers. But he has not summoned his brothers to prove this fact. However, in this cross examination he has stated he had paid the complainant thrice by way of cash. Further accused does not remember the amount paid by him in cash. This improbabilises the defence plea raised by accused. 8. Also, the accused has failed to prove that cheques in question were given by him in 2009-10. Factum of repayment of loan also has not been proved. Further there is no explanation as to why accused failed to take any action after complainant did not return his cheque especially when complainant had a quarrel with him. He did not even issue stop payment instructions to his banker. 9. In his application u/s 145 (2) of NI Act accused has stated that he has made the payment of ₹ 1,00,000/- in cash to the complainant. In his examination-in-chief he has stated that ₹ 70,000/- was given in cash through his brothers. But, in his cross-examination ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40,000/- as balance payment. During his cross examination he was confronted with the bank statements of account of daughter and wife of complainant and was suggested that payment at points A to Q of bank statement Ex. DW1/C-1 (during the period 1.1.2009 to 31.12.2011) were repayment for deposit in 'Committee'. The study of the statement EX. DW1/C-1 reveals that last payment credited is dated 26.8.2011. 7.3 From the evidence as noticed above, it can be safely gathered that there had been a running account between the parties. It is not an incident of two single transactions of Rs. One lac each as initially claimed by the complainant/respondent. Complainant was running a 'Committee' and also claims to have advanced another loan, after the loan in question. Suggestions given to DW-1 that payments reflected in Account Statement Ex. DW-1/C-1 were towards a 'Committee', amounts to admission by complainant that he was running a 'Committee' of which accused was a member. A study of his complaint and his affidavit Ex. CW1/A reveals that he is totally silent about any other loan transactions and the 'Committee'. The explanations that has been rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there had been a running account between the parties and it was not an incident of two single transactions of Rs. One lac each. The Petitioner was running a 'Committee' and claims to have advanced another loan, after the loan in question and the petitioner was silent about any other loan transactions and the 'Committee'. The fact that the Petitioner admitted to having received ₹ 20,000/-, in the view of the appellate court, was sufficient to rebut the presumption, that the subject cheques were issued towards discharge of liability of Rs. One lac each. The appellate court was of the view that Respondent No. 1 had sufficiently discharged the onus. Further the Appellate court was of the view that as the cheque book was printed and issued prior to 01.01.2010, the use of the said cheque book in the year 2011 raised a suspicion that the cheques were lying in the custody of complainant, since quite some time and might have been misused by him. 12. The appellate court has clearly fallen in error in reversing the well reasoned order on conviction of the Trial Court. The appellate court failed to notice that Respondent No. 1 had admitted taking of the loan. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion first then I will give ₹ 7000/- to him. However, complainant refused to return the cheques in question saying that he has lost the cheques in question and started saying that ₹ 35,000/- to ₹ 40,000/- are due from you. A fight also took place between me and the complainant regarding this issue. Complainant had also filed a Non Cognizable Report at PS Kashmere regarding the misplacement of cheques. 1 had asked the complainant to provide me the cheque numbers to which he stated that everything is written in the loan agreements and I will provide you the details after noting down the same. After 3-4 days complainant told me that he has found the cheques in question in his pocket and he also got the Non Cognizable Report at PS Kashmere Gate cancelled. I had deposited ₹ 1,50,000/- in the bank account of the complainant, ₹ 50,000/- in the joint account of his daughter and wife and ₹ 15,000/- by way of cheque. I had also given ₹ 70,000/- in cash to the complainant through my brother Mr. Pummy and Mr. Shalesh Sharma. (underlining supplied) 15. In the cross-examination, respondent no. 1 stated as under:- It is correct that I know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit into the account of the complainant. I only remember that I had invited the complainant to my shop for payment in the year 2011. the complainant had shown me the copy of NCR of the cheque. It is wrong to suggest that complainant has not shown any NCR to me. It is wrong to suggest that no quarrel took place between me and complainant at my shop. It is correct that I have not lodged any police complaint with respect to cheque in question when complainant refused to return the cheque. I did not serve any legal notice upon the complainant for return of my cheque. I have not filed any suit to stop the cheque from being presented. At the stage accused is shown the statement of account of the complainant as well as that of joint account of wife and daughter. The same is Ex.DW1/C1 (01.01.2009 to 31.12.2011) and EX.DW1/C2 (01.01.2010 to 06.12.2012) collectively. This document bears deposit of money by me into the abovementioned accounts at point A to Q in Ex.DW1/C1. However, It is not clear in EXDW1/C2 as to which payments have been made by me. It is correct that I used to deposit money for membership of committee. It is incorrect to suggest that the payment which has been marked as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shows that Respondent No. 1 has failed to rebut the legal presumption that arises in view of several admissions made by him. 17. The Trial court had held and rightly so that Respondent No. 1 had not placed any document on record to show as to how and when the said amount was repaid. He could only prove that a sum of ₹ 20,000/- was paid, which amount was also explained by the Petitioner as representing a different loan transaction of ₹ 20,000/-. When confronted with the statement of account of daughter and wife of the Petitioner, Respondent No. 1 could not explain the amounts deposited by him. 18. Neither any document nor any independent witness from the bank was produced to show that any amount had been deposited by him in the bank account of the Petitioner or his wife and daughter. On the other hand he admitted in his cross-examination that he used to deposit money for membership of committee which supports the explanation of the petitioner that the amount of ₹ 20,000/- was towards an independent transaction. Further Respondent No. 1 did not even examine his brother who is alleged to have paid ₹ 70,000/- to the petitioner. Respondent No. 1 also coul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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