Kapil Sahani vs Santok Singh

V.K. Shali, J.—This is a leave to appeal filed by the petitioner against the judgment dated 03.10.2011 passed by Mr. Mukesh Kumar,

ACJ-Cum-ARC-North West. By virtue of which, the learned Trial Court has held that the complainant has failed to prove that the cheque in

question was issued against the liability, and therefore, dismissed the complaint of the appellant and acquitted the respondent/accused. I have heard

the learned counsel for the appellant and have perused the judgment of the learned Trial Court.

Briefly stated the facts of the case are that the respondent-accused was running in financial crises in his business, and therefore, demanded a

financial help by way of a loan from the petitioner in the month of April, 2002 to the extent of Rs.5,00,000/- for a period of eight or nine months.

Since, the request was repeated time and again, the present petitioner advanced a friendly loan of Rs.5,00,000/- without any interest and the

respondent/accused handed over a post dated cheque bearing No. 305931 dated 20.04.2003 drawn on Syndicate Bank, Punjabi Bagh, New

Delhi. It has been stated that after expiry of nine months in December, 2002 when the respondent accused did not return the friendly loan amount,

the present petitioner was constrained to present the cheque to its banker for encashment. The cheque was for a sum of Rs.5,00,000/- was

dishonoured by the Oriental Bank of Commerce, Sector-8, Rohini, Delhi on 19.06.2003. The appellant approached the respondent and asked

him to clear the liability, which was not done by him. Consequently, he sent a statutory demand notice and filed a case u/s 138 of the Negotiable

Instruments Act. After adducing of pre summoning evidence, the respondent-accused was summoned and notice u/s 251 Cr.P.C. was framed

against him on 27.01.2007 to which the respondent-accused pleaded not guilty. The present petitioner examined himself as a sole witness in

support of his case. Thereafter, the statement of the accused u/s 313 Cr.P.C. was recorded. The respondent-accused also examined two defence

witnesses in support of his defence. The learned Magistrate after hearing the arguments analyzed the evidence in the light of Section 138 and 139

of the Negotiable Instruments Act and came to the conclusion that as the present petitioner has admitted in his examination-in-chief that cheque in

question exhibited as CW1/1 was handed over to him by way of security only, and therefore, the Trial Court held that it would not attract Section

138 of the Negotiable Instruments Act.

I have carefully considered the record and gone through the judgment.

I find myself in agreement with the reasoning of the Trial Court. The petitioner in his statement as well as in his cross examination has testified in

such a manner that it does not inspire the confidence regarding the truthfulness or the veracity to be attached to his testimony. He had admitted that

the respondent-accused himself was not dealing with the present petitioner. As a matter of fact, the respondent-accused was having dealing with

the father of the petitioner. He has also stated that the cheque in question was issued to the present petitioner by way of security, which had the

No. 305931 dated 20.04.2003 drawn on Syndicate Bank, Punjabi Bagh, New Delhi. It is further admitted by the complainant/petitioner that the

amount of Rs.5,00,000/- was given by way of interest free loan. This has not been reflected in his books of account or in the income tax return.

Further the loan is given without any issuance of any valid receipt or proof to the respondent/accused clearly shows that it is very doubtful that the

petitioner had given any loan to the respondent/accused. On the contrary, he has admitted in his cross-examination the cheque in question was

handed over to him by respondent-accused only as a security. Since the petitioner complainant has admitted in his examination-in-chief that the

cheque in question was received by him only by way of a security that clinches the entire issue in favour of the respondent-accused.

One of the fundamentals of prosecution u/s 138 of the Negotiable Instruments Act is that the cheque which is dishonored must be issued in

discharge of his liability by the drawer while as in the instant case the petitioner complainant himself has admitted that the cheque was issued by

way of having said so, if the cheque was issued as a security certainly it could not be treated as the one which is issued for discharge of his liability,

therefore, the learned Magistrate was right in observing that the petitioner has been unable to prove the guilt of the accused beyond reasonable

doubt. Accordingly, for the above-mentioned reasons, I do not find any merit in the leave to appeal, and accordingly, the same is rejected.