TMI Blog2018 (7) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the respondent with regard to the apprehended outstanding electricity bills, whereafter, the balance payment of ₹ 5,00,000/- was to be handed over to the appellant. Only this arrangement explains issuance of the said cheque of ₹ 5,00,000/- by the respondent and its being handed over to a third party, namely, Surender Kumar – as claimed by the respondent. The appellant has proved beyond all reasonable doubt that the cheque in question was issued by the accused in discharge of a legally recoverable debt. It has also proved that the said cheque has been dishonoured upon presentation and, despite issuance of statutory notice of demand within the period of limitation, the amount has not been paid by the accused. The defence set up by the accused has not been probablised and he has not been able to create any doubt in the mind of the Court that the said cheque was not issued towards discharge of a legally recoverable debt. The respondent accused has not been able to rebut the presumption arising in favour of the appellant holder of the cheque. The respondent accused is held guilty for commission of the offence under Section 138 of the Negotiable Instruments Act - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry. The registered sale deed Ex. CW1/DA showed the value of the property as ₹ 4,00,000/-. The two cheques received by the appellant/complainant amounting to ₹ 4, 00,000/- in total have been mentioned in the sale deed. He further deposed that the amount of ₹ 4,00,000/- was towards sale consideration and volunteered that ₹ 1,00,000/- was for building material. He, however, admitted that the presence of building material, and its sale to the accused for ₹ 1,00,000/- was not mentioned in the sale deed; the legal notice, and; the complaint. 6. After the conclusion of appellants post summoning evidence, statement of respondent was recorded u/s 313 of the Criminal Procedure Code on 21.03.2013, wherein the respondent/accused stated that the complaint was false and frivolous. He also stated that on 07.02.2006, he had issued two cheques amounting to ₹ 2,00,000/- each - one in the name of the appellant and another in the name of wife of the appellant/complainant in consideration of the purchase amount relating to property bearing no. B66, East Nathu Colony, Delhi-94, which he had purchased from the appellant/complainant and his wife. 7. Those chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the accused had told him that Surender Kumar had not returned the cheque of ₹ 5 lakhs. 9. Kewal Singh, DW-2, inter alia, stated in his examination in chief that some electricity bills were remaining to be paid, amounting to around ₹ 22 lakhs, which the complainant had agreed to clear. Regarding the same, a meeting was held in the year 2006 (probably) in the morning around 11:00 a.m. in his office. He gave the names of the persons who were present in the meeting, which included Surender Kumar. Surender Kumar stated that he had no faith in the complainant as to whether he will clear the bills or not. Surender Kumar demanded a cheque from the accused Bawa Singh. Accordingly, the cheque amounting to ₹ 5 lakhs was given as security by the accused Bawa Singh to Surender Kumar. He stated that the cheque was written in words. He again said that the amount of ₹ 5 lakhs was written in figure, and that nothing else was written on the cheque. He stated that Surender Kumar promised to get the electricity bills cleared within the remaining period of one month of registry. But the bills could not be cleared for reasons not known to him. He stated that Surender Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused with regard to the issuance of the cheque of ₹ 5 lakhs which bore his signature, as well as the amount of ₹ 5 lakhs filled in. 12. The learned MM observed that the obligation to pay the electricity dues till the date of the sale deed was of the complainant. In this situation, there was no explicable reason as to why the accused would issue a cheque for ₹ 5 lakhs as security to Mr. Surender Kumar for clearing/ settling the electricity dues. The said defence of the accused was held to be not believable as it was against the natural course of human behaviour and conduct. 13. The submission of counsel for the appellant is that, admittedly, the accused had issued the cheque of ₹ 5 lakhs under his signatures. If there was no obligation on the part of the accused to clear the alleged electricity dues, there was no reason for the accused to issue the same towards security . Moreover, the defence of the accused that he had replaced the two cheques of ₹ 2 lakhs each (in aggregate ₹ 4 lakhs) with cash payment is wholly unsubstantiated and not even probablised, since no receipt of payment of cash has been produced, and no witness to the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no evidence led by the accused to substantiate the plea that apart from ₹ 15 lakhs paid in cash (which is acknowledged by the appellant), a further sum of ₹ 1 lakh was paid in cash on 12.03.2016 i.e. one day before the registration of the sale deed. The said plea of payment of Rs. One Lakh on 12.03.2016 is not probabalised. In fact, this statement of the accused-duly supported by his affidavit, explains the issuance of the cheque of ₹ 5 lakhs by the deceased. 17. On the other hand, learned counsel for the respondent has argued that the impugned judgment does not call for interference, since the defence of the accused has been probablised and the guilt of the accused has not been proved beyond all reasonable doubt. The complainant has to stand on his own legs. There are serious and gaping holes in the story of the appellant, since it is not explained as to why two cheques of ₹ 2 lakhs each issued in the name of the appellant and his wife, were replaced by one cheque of ₹ 5 lakhs drawn in favour of the appellant. Learned counsel submits that the electricity dues outstanding, as on the date of sale of the said property, are to the tune of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20.11.1987 to the extent of 100 Sq.Yds. In respect of the remaining 100 Sq.Yds., a similar agreement was executed between Gulzar Singh and Smt. Shakuntala Devi- the wife of the appellant. The respondent states that as there were three electricity meters installed in the premises when the same was purchased by the appellant and his wife. The respondent claims that the DVB had issued a reminder in the name of Gulzar Singh, alleging that there was Fraudulent Abstraction of Electricity (FAE)/ direct theft dated 14.10.1999 in respect of the three electricity connections. The respondent further states that there was an outstanding electricity due of ₹ 18,12,109.69/- which was reflected in the bill dated 13.01.2005 raised by the electricity supply company. He states that he had purchased the said property in the year 2006 from the complainant on as is where is basis wherein the said electricity meters were installed. He states that the complainant had failed to pay the outstanding amount, stating that he had cleared the bills issued in the name of his wife, and bills raised in his name would be cleared soon without burdening the respondent. He obtained a duplicate bill in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he previous month. It is not the defence of the respondent accused that the electricity company has taken any steps against him as the user of the electricity connections in the premises, or his property, to recover the so called dues of ₹ 18,12,109.69/-, or any such amount. 26. On the other hand, the appellant has clearly shown from the documents placed on record that there were no outstanding dues in respect of the electricity connection obtained by Gulzar Singh. After the transfer of the connections, the electricity bills raised in the name of Smt. Shakuntala were regularly paid. BSES Yamuna Power Ltd. has also issued a certificate, certifying that there are no electricity dues of BYPL outstanding in respect of K No. 12600B090002, and that he is free to surrender the said electricity connection, on 18.09.2006. The electricity dues of Gulzar Singh, in any event, would be barred by limitation in view of the judgment of this Court in H.D. Shourie v. Delhi Municipal Corporation AIR 1987 DEL 219. 27. Having clarified the factual position by taking the evidence on record, I now proceed to discuss the rival submissions of the parties. 28. The appellant claims that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned the finding that the defendant i.e, the respondent accused has issued consolidated cheque of Rs Five Lacs after receiving two cheques of Rs. Two lacs each. Hence, the sale deed executed by the plaintiffs in favour of the defendant in respect of the suit property is without any sale consideration. The defendant has failed to prove that he had paid the sale consideration amount in cash to the plaintiffs. Accordingly, both the issues are decided in favour of the plaintiffs and against the defendants. It is a different matter that the appellants suit was dismissed on the ground that the same was barred by limitation. 31. Despite finding the defence of the accused to be unbelievable, the Ld. Magistrate acquitted the respondent on account of an apparent discrepancy in the case of the appellant. Ld. MM held that out of the sale consideration of ₹ 20,00,000/-, the complainant claimed to have received only 15,00,000/- in cash. Thus, the outstanding balance was ₹ 5,00,000/-. Even then the complainant accepted two cheques - totaling to ₹ 4,00,000/- only. The appellant had not disclosed as to how the remaining amount of ₹ 1,00,000/- was sought to be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is nothing to substantiate that the respondent had made any payment to the petitioner, other than the amount of ₹ 15 lakhs. Thus, there is no inconsistency in so far as the case of the complainant is concerned that he has received ₹ 15,00,000/- and had to receive the balance of ₹ 5,00,000/-. 34. The respondent claimed to have issued the cheque in question to one Surender Kumar for clearing the electricity dues of the premises which, according to him, were to be cleared by the appellant. The explanation furnished by the respondent, to say the least, is absurd. If the appellant had to clear the said dues, there was no reason for the respondent to issue the cheque of ₹ 5,00,000/- and leave it with Surender Kumar. The position would have been to the contrary. It is the appellant, who would have had to create a security in favour of the respondent to ensure that he clears the outstanding electricity dues. It is also pertinent to note that the Ld. MM has rejected the explanation furnished by the accused for issuance of the cheque of ₹ 5,00,000/- which admittedly bears his signatures. 35. Thus, it is evident that the cheque of ₹ 5,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building material lying on the ground floor of the premises was not necessary to be gone into. As to how the parties decided on the consideration under the transaction, and what all went into it, is not the concern of the court. What is relevant and material is that the total sale consideration was ₹ 20 lakhs. 39. The defence set up by the respondent accused is most implausible. This court in Rajesh Agarwal v. State Anr., 2010 VII AD (Delhi) 576 has observed as under: There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused . 40. As noticed above, the accused did not examine himself as his witness. Thus, his statement recorded under Section 281/ 313 Cr PC cannot be read as a part of his evidence. In V.S. Yadav v. Reena, 2010 (4) JCC (NI) 323 , this court observed: 5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttable evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court... ... . (emphasis supplied) 42. In a later part of the judgment, the learned Single Judge has observed: 11. ... ... Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Reverse onus clauses usually impose an evidentiary burden. It is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly placed on paras 13 and 20 of this decision. Paragraph 13holds that, whereas the standard of proof so far as the prosecution is concerned is to prove the guilt beyond reasonable doubt; the defence of the accused has to be established on mere preponderance of probability. 47. There can be no quarrel with the aforesaid proposition. It will have to be examined from case to case as to whether the accused has set up a probable defence. 48. In para 20 of this decision, the Supreme Court held that the appellate court shall not reverse the judgment of acquittal, only because another view is possible to be taken. Once again, there can be no quarrel with this proposition. However, if the appellate court finds that the judgment of acquittal rendered by the Trial Court is a result of mis-appreciation of evidence brought on record and is not premised on the correct legal principles, and the view taken by the Trial Court is not one of the possible views which could be taken in the particular case, the appellate court is duty bound to exercise its appellate jurisdiction and interfere in the matter in the interest of justice. It is well settled that just as it is necessary to ensure that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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