Surinder Bansal vs Satpal

Applicant - Surinder Bansal has filed this application

under Section 378(4) Cr.P.C. seeking special leave to appeal.

Briefly stated, facts of the case are that complainant -

Surinder Bansal had brought a criminal complaint under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred to as the Act)

against accused Satpal on the allegations that at request of the accused,

complainant granted a friendly loan of Rs.1,00,000/- to him on

17.11.2009 and Rs.30,000/- on 20.11.2009 against receipt dated

20.11.2009 issued by son of accused Rajiv Kumar; that it was assured

that complainant would receive back the said amount in one year

without any hassle; that the complainant asked the accused to return the

said friendly loan at which accused in order to discharge his liability

towards the complainant issued cheque bearing No.016642 dated

1.12.2010 for Rs.25,000/-, cheque No.016644 dated 1.12.2010 for

Rs.25,000/-, cheque No.016645 dated 1.12.2010 for Rs.25,000/- and

cheque No.016646 dated 1.12.2010 for Rs.30,000 all drawn on Central

Bank of India, Urban Estate, Ambala City; that the complainant

presented those cheques to his banker i.e. State Bank of India, Model

Town, Ambala City on 7.12.2010, which in turn forwarded the cheques

to banker of accused namely Central Bank of India for encashment but

the cheques were returned uncashed with memo of the bank dated

8.12.2010 having endorsement "Funds Insufficient"; that the

complainant was informed accordingly, at which he served legal notice

dated 29.12.2010 upon the accused on last known two addresses but

accused refused to receive the legal notice and those were returned with

the remarks "GHAR WALON NE LENE SE INKAAR KIYA" (family

members refused to take); that the accused did not make payment within

the stipulated period, as such the complainant had filed a complaint

before Judicial Magistrate Ist Class, Ambala.

After recording of preliminary evidence, accused was

summoned. Notice of accusation under Section 138 of the Act was

served upon him, to which, he pleaded not guilty and claimed trial.

During the course of evidence, complainant Surinder

Bansal got his statement recorded as CW1 submitting his affidavit

Ex.CW1/A reiterating his version as contained in the complaint

tendering Ex.C1, Ex.C3, Ex.C5 and Ex.C6 cheques in question, Ex.C2,

Ex.C4, Ex.C7 and Ex.C8 memos of bank, bank payment receipt Ex.C9,

bank statement Ex.C10, Ex.C11 legal notice, Ex.C12 and Ex.C13 postal

receipts, Ex.C14 and Ex.C16 registered envelopes, Ex.C15 postal

acknowledgement card, Ex.C17 statement of account and copy of

cheque No.938708 for Rs.1,00,000/- drawn on Allahabad Bank as

Ex.C18.

With that the evidence of complainant was closed.

Statement of accused was recorded under Section 313

Cr.P.C. in which the accused while denying the incriminating

circumstances appearing against him submitted that he was innocent and

had been falsely involved in the case. He denied having taken any

money from the complainant or being liable to pay any amount to him,

rather he took up a stand that he and his son gave ten security cheques

each to the complainant on the assurance for getting the Agency of tea

leaves with the complainant and complainant has played fraud upon him

by misusing the security cheques.

During his defence evidence, the accused examined

Devinder Kumar as DW1, who tendered his affidavit Ex.DW1/A

corroborating the version of accused. Accused further examined

Ms.Arvinderjeet Kaur, Criminal Ahlmad of the Court of JMIC, Ambala

as DW2, who had brought the file titled as "Surinder Bansal Versus

Amit Vashishat" regarding cheque amount of Rs.1,40,000/-, in the said

case proving cheque of Rs.85,000/-. She had also brought the file of

case titled "Surinder Bansal Versus Gagandeep Rawat", proving cheque

amount of Rs.60,000/-, wherein the alleged amount had to be given on

15.5.2011, 29.4.2013 and 16.4.2013. Harsh Kumar appeared as DW3,

who tendered his affidavit Ex.DW3/A, in which he lend support to the

case of accused.

Accused further tendered in evidence documents Ex.D1 to

Ex.D8.

Thereafter, the defence evidence of accused stood closed.

After hearing arguments, the learned trial Magistrate

dismissed the complaint under Section 138 of the Act. The main reasons

given for arriving at such conclusion are as follows:

(1) To prove legal enforceable pecuniary liability of the

accused towards him, the complainant had relied upon

Ex.C10 allegedly an acknowledgement of loan given by son

of accused Satpal namely Harsh Kumar and another son of

accused namely Rajiv Kumar having acknowledged the

receipt of the friendly loan. The trial Magistrate had

observed that though DW3 Harsh Kumar had admitted his

signatures on Ex.C10 stating it to be statement of account

of his father but he had no where admitted that it is the

acknowledgement of the alleged cheque amount and further

according to the trial Magistrate the ink and writing of the

amount as well as signatures of Rajiv Kumar were different

from that Harsh Kumar and in Ex.C10, no where expressly

or impliedly, it is mentioned that sons of accused had

received the cheque amount, therefore Ex.C10 could not be

treated as valid admission or acknowledgement of the

cheque amount as alleged transaction in the present case is

surrounded by suspicious circumstances for the following

reasons:

(i) The complainant had submitted that he had given a

friendly loan to the accused but evidence on record

shows that it was not so and complainant is a money

lender advancing loans to different persons on

different occasions. It being so , he was expected to

maintain the proper account books/ledger etc., which

he had not done.

(ii)The loan had not been given in presence of any

witness.

(iii)The loan transaction is neither supported by any

documentary evidence nor by any oral testimony.

(iv) Failure of the complainant to show that he had

capacity to lend such huge amount to accused. The

complainant in his cross-examination stating that he

had received loan of Rs.1 lac from Ashok Kumar

vide Ex.C17 and Ex.C18 though Ex.D2 reveals that

complainant had shown his ignorance regarding

taking of loan from Ashok Kumar. It seems highly

unusual and strange that complainant borrowed

money from Ashok Kumar and lent the same to the

accused without interest. Reference was made to

Hon''ble Apex Court judgment titled K. Prakashan

Versus P.K. Surendern 2007(4) RCR(Crl.) 588

which was a case when it was observed that

complainant himself had not sufficient funds and

used to borrow the same from others. The complaint

was dismissed.

(2) Material inconsistency in the statement of complainant

inasmuch he had alleged different facts on different occasions

in his deposition vide Ex.D1 and Ex.D7.

(3) Failure of the complainant to show the alleged loan

amount in his income tax returns more particularly when he

himself has claimed that it was a loan which was paid after one

year i.e. in the next financial year.

(4) The amounts on cheques having been written in

different ink and by different pen pointing out that there was

possibility of misuse of blank cheques. The alleged loan

transaction and execution of the cheques in question are

surrounded by suspicious circumstances. Benefit of doubt

going to the accused.

(5) Presumption under Section 139 of the Act being

rebuttable.

(6) The defence version being probable.

(7) The trial Magistrate had come to the conclusion

that complainant had failed to prove that cheques in question

had been issued by the accused in discharge of his legal

enforceable debt/liability, therefore, benefit of doubt to the

accused and he was acquitted.

The complainant felt aggrieved and he had knocked at the

door of this Court by moving an application under Section 378 (4)

Cr.P.C . for grant of special leave to appeal against the judgment of

acquittal.

I have heard learned counsel for the applicant and I find

that no ground is there to grant special leave to appeal. I do not find any

illegality and irregularity in the judgment passed by the learned trial

Court. Rather it is based upon proper appraisal and appreciation of

evidence and correct interpretation of law.

Therefore, no ground is made out to grant special leave to

appeal in this case. The application is, therefore dismissed accordingly.