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Judgment
VIKAS MAHAJAN, J. (ORAL)
The present appeal has been filed against the impugned order dated 06.06.2019 passed by the learned Metropolitan Magistrate-09, South-East District, Saket Courts, New Delhi, whereby the complaint of the appellant was dismissed and the respondent no.2/accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’)
The complaint was filed by the complainant under Section 138 of the NI Act alleging that the accused had entered into three agreements dated 19.01.2015, 21.02.2015 and 23.03.2015 with the complainant for a sum of Rs.1,00,000/- each. Under the agreement dated 19.01.2015, a sum of Rs.1,00,000/- was advanced by the petitioner/complainant to the respondent/accused @ 5% p.m. and after deducting the first instalment of interest, an amount of Rs.95,000/- was paid to the accused/respondent. The second agreement dated 21.02.2015 contains only one line wherein it has been mentioned that a further amount of Rs.1,00,000/- has been received by the respondent/accused. The third agreement dated 23.03.2015 contains a narration to the effect that further amount of Rs.1,00,000/- has been received by the complainant/accused at interest of @ 3% p.m..
It is the case of the petitioner/complainant that two security cheques of Rs.1,00,000/- each were issued by the respondent/accused to the petitioner/complainant. As the respondent/accused failed to repay the loan amount, the petitioner/complainant was constrained to present the said two cheques, both bearing the date 15.02.2018. However, the cheques were returned unpaid with the remarks “account closed”.
Notice under Section 138 of the NI Act was given by the petitioner/complainant and thereafter, a complaint was instituted under Section 138 read with Section 142 of the NI Act.
Notice under Section 251 CrPC was framed against the respondent/accused to which the respondent/accused pleaded not guilty and claimed trial. In the said notice, specific defence was also taken by the respondent/accused that he had given three cheques to the petitioner/complainant with an understanding that the complainant will pay the loan of Rs.3,00,000/- but thereafter, the petitioner/complainant failed to give an amount of Rs.3,00,000/- to the accused.
The petitioner/complainant examined himself as CW-1 and he was cross-examined by the respondent/accused. Thereafter, the statement of the accused under Section 313 CrPC read with Section 281 CrPC was recorded wherein it was stated by the respondent/accused that both the cheques were given in advance for security purpose.
The learned Metropolitan Magistrate after examining the evidence on record recorded a finding that the petitioner/complainant had failed to prove that the respondent/accused had executed any loan agreement/receipt (Ex.CW-1/1).
Learned counsel for the petitioner invites the attention of the Court to three agreements, to contend that the said three agreements bear the signatures of the respondent/accused, therefore, the payment of Rs.3,00,000/- by the petitioner/complainant stood proved.
He further submits that the respondent/accused had admitted his signatures on the cheques as well, therefore, in view of the presumption under Section 139 of the NI Act, the learned Metropolitan Magistrate ought to have allowed the complaint of the petitioner/complainant. He submits that the learned Metropolitan Magistrate has wrongly concluded that the petitioner/complainant has not proved that the cheques were issued in discharge of legally enforceable debt.
Per contra, learned counsel for the respondent no.2 has invited the attention of the Court to the cross-examination of the petitioner/complainant (CW-1), to contend that in the cross-examination for the first time the petitioner/complainant had taken a stand that an amount of Rs.1,00,000/-was given cash on three occasions.
She submits that there is nothing on record to suggest that the petitioner was possessing that much cash amount with him at the relevant time. She further contends that the petitioner/complainant in his cross-examination has feigned ignorance with regard to three agreements executed between the parties, rather he specifically mentioned that the said transactions took place in the presence of his uncle, therefore, he only could tell about the execution of agreement, but the complainant did not examine his said uncle in support of his case, therefore, an adverse inference in terms of Section 114(g) of the Evidence Act has to be drawn.
She further contends that it is also the case of the petitioner/complainant in his cross-examination that he handed over money to the respondent/accused at his uncle’s house in the presence of his uncle, aunt and their children, but again none of them have been examined. She thus, submits that the view taken by the Trial Court is a plausible view and there is no perversity in the same.
I have examined the evidence and the material on record with the assistance of the learned counsel for the parties and have also gone through the judgment of the learned Metropolitan Magistrate.
The complainant in his examination had feigned ignorance about the execution of any agreement and further stated that his uncle could shed light on the execution of the agreements. Likewise, the complainant also stated that money was handed over by him to the respondent in presence of his uncle, aunt and their children. Intriguingly, none of the said persons have been examined. Further, one Khem Chand Koli is witness to the agreements collectively exhibited as Ex.CW-1/1 but the complainant has not even examined the said Khem Chand Koli. In this backdrop the learned Trial Court concluded that the complainant had failed to prove such loan agreements/receipts Ex.CW-1/1. The relevant findings of the learned Trial Court read as under:-
“12.In the present case, it is alleged that complainant gave loan of Rs.3 lacs in cash in three installments of Rs.1 lac each to accused. Accused raised the defence that no such loan was taken by him.
13.To prove the loan transaction the complainant has heavily relied upon alleged loan agreement Ex.CW1/1. However, during his cross-examination, complainant deposed that:
Only two agreements for initial transactions of Rs.1 lac each were prepared. No agreement for third transaction was prepared (Vol. Accused assured me to execute one agreements for all three transactions after handing over the documents of this vehicle. But no agreement was executed by him).
Ques. I put it to you that firstly you admitted execution of two agreements for first two transactions but now stated that no such agreement was executed for all three transactions. Which one of both is correct?
Ans. I am illiterate. I do not remember the execution of any agreement. All the transactions took place in the presence of my uncle. Therefore, he can tell about the execution of agreement.”
14.In view of above testimony, complainant failed to prove that accused has executed any such loan agreement/receipt Ex.CW1/1. Khem Chand Koli is witness for execution of Ex.CW1/1. Complainant did not examine Khem Chand Koli to prove the execution Ex.CE1/1 by the accused. Thus Ex.CE1/1 cannot be considered into evidence because it has not been proved by any of the witness examined by the complainant.”
Further, as per the case of the appellant/complainant the loan of Rs.3 lakhs was advanced in cash which had been arranged by him from the profit of his shop, but the appellant neither produced his ITR nor books of accounts to substantiate his source, as well as, the capacity to advance the loan of said amount. The testimony of the appellant/complainant was also found by the learned Trial Court to be inconsistent. The findings of the learned Trial Court in this regard reads thus:
“15.Accused has also raised concern about the financial capacity of complainant to grant loan of Rs.3 lacs. Complainant deposed as follows to prove the source of loan of Rs.3 lacs.
“I run a shop of mobile repairing at Sanwal Nagar since 12-13 years. Prior to that I was running a shop of namkeen/biscuits. I had filed my ITR 4-5 years ago thereafter I did not file any ITR. I have also filed my ITR in the last year. I can produce my recent ITR only but cannot produce my previous ITR. It is wrong to suggest that I am deliberately suppressing my previous ITR because it was never filed. I am living in joint family consisting of my mother, brother, sister-in-law and their two children. I am bachelor. My brother was doing nothing in the year 2014-2015 and 2016 but he used to sit at shop alongwith me. My monthly household expenses were Rs.12000-13000 in the year 2013-2014 and 2014-2015. The monthly expenditure at the shop is somewhere Rs.1200-1300 in the year 2013-2014 and 2014-2015. I cannot produce any document that I was running a shop of mobile repairing/recharge in the year 2014-2015.”
16.Complainant also deposed that he arranged the loan amount from the profit of his shop. Complainant neither produced his ITR nor produced books of his shop to prove his financial capacity to grant loan of Rs.3 lacs to the accused. Under the provision of section 269ss Income Tax act, a loan of more than Rs.20,000/- cannot be given in cash. The story of the complainant cannot be relied upon especially in the absence of any documentary evidence. If there were sufficient funds were available with the complainant then why he did not give the loan to the complainant through cheque or by bank transaction. All these facts and circumstances belied the story of complainant. The oral testimony of the complainant does not inspire confidence in absence of any documentary evidence for payment of Rs.3 lacs.
17.Moreover, the said amount was unaccounted money and it was not a legally recoverable debt. It was held in case titled as G. Pankajakshi Amma case (supra) that if these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. Hence, complainant has miserably failed to prove that there is a legally recoverable debt payable by the accused.
18.The case of the complainant has been very inconsistent and the complainant has floundered, as the cross-examination progressed and from this it can be safely concluded that the complainant has proved himself to be unreliable and this has made way for the accused to prove the non existence of consideration; or atleast that it was improbable or doubtful.”
(emphasis supplied)
This Court finds that the aforesaid view taken by the learned Metropolitan Magistrate of the evidence on record is a possible view. The learned counsel for the petitioner has not been able to point out any perversity in the findings recorded by the learned Metropolitan Magistrate.
It is trite law that the scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the view of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.1 Reference in this regard may be had to the decision of the Hon’ble Supreme Court in K. Prakashan vs. P. K. Surenderan: (2008) 1 SCC 258 wherein it has been held that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The relevant extract of the said decision reads thus:-
“20.It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court’s jurisdiction to interfere is limited. [See M.S. Narayana Menon and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137] The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different.”
(emphasis supplied)
Likewise, in the case of Suman Chandra Vs. Central Bureau of Investigation, 2021 SCC OnLine SC 3425 wherein the challenge was to the acquittal of the accused, the Hon’ble Supreme Court held that while exercising its powers to reverse an acquittal, the order of the trial court must not only be erroneous, but also perverse and unreasonable. The relevant paragraph of the decision reads thus:
"It is well settled law that reversal of acquittal is permissible only if the view of the Trial Court is not only erroneous but also unreasonable and perverse. In our considered opinion, the view taken by the Trial Court was a possible view, which was neither perverse nor unreasonable, and in the facts and circumstances of the present case, ought not to have been reversed or interfered with by the High Court." (emphasis supplied)
In view of the above, I do not find any infirmity in the impugned judgment and, therefore, no interference is warranted.
Accordingly, there is no merit in the appeal and the same is dismissed.
Footnotes
- 1.2022 SCC OnLine SC 984