JAL SINGH MALIK Vs. OM PRAKASH

JUDGEMENT

(1.) The present Appeal bearing no.786/2023 is filed under Sec. 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") read with Sec. 482 of the Code to challenge judgment 2/4/2019 passed by Ms. Prabh Deep Kaur, Metropolitan Magistrate-02, South, Saket Courts, Delhi (hereinafter referred to as the "trial court") bearing CC no. 471383/2016 titled as Jal Singh Malik V Om Prakash.

(2.) The appellant/complainant Jai Singh Malik (hereinafter referred to as "the appellant") through attorney Mala Devi Malik filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "the Act") against the namely Om Prakash/accused (hereinafter referred to as the "respondent") on allegations that the respondent issued a cheque bearing no. 098957 dtd. 10/1/2016 amounting to Rs.6,00,000.00drawn on State Bank of India, Ambedkar Nagar, Delhi-110017 (hereinafter referred to as "the cheque in question") in favour of the appellant towards discharge of liability and the said cheque got dishonoured when presented for encashment on the ground of "funds insufficient" vide return memo dtd. 15/3/2016. The appellant pleaded that the appellant, a member of paramilitary force, was advised by the respondent who is also relative of the appellant to purchase a flat in Delhi. The appellant has agreed to purchase a flat in locality of Krishna Park/Jawahar Park. The appellant had deposited Rs.4,47,095.00in two accounts bearing no 160010100050643 and 10207358344 maintained at Axis Bank and State Bank of India during period from 7/2/2008 to 2012 and gave Rs.1,52,905.00 in cash in the year 2013 to 2014 total Rs.6,00,000.00to the respondent on assurance of the respondent regarding purchase flat for the appellant.

(3.) The appellant being aggrieved filed present appeal. The appellant was granted leave to appeal vide order dtd. 13/9/2023. The appellant challenged impugned judgment on grounds that the trial court failed to appreciate that the presumption as per the Act is always drawn in the favour of the holder of the instrument i.e. the payee. The respondent has admitted signature on the instrument and other particulars were filed by him. The trial court erred in holding that the appellant has changed his version as minor discrepancies in the oral testimony of the Appellant are not sufficient to disbelieve his testimony which cannot be discarded being hearsay. The impugned order suffers from perversity as the trial court has failed to appreciate that liability toward the cheque in question was to be disproved by the drawer of the cheque i.e. the respondent as the presumption draws always in the favour of the payee. The trial court has fastened entire liability of proving upon the appellant. The trial court did not appreciate that the appellant has paid major part of amount of Rs.6,00,000.00by depositing in account of the respondent which remained un-rebutted and stood affirmed and gave Rs.1,52,905.00in cash. The respondent relied on document Ex. CW2/D1. The appellant prayed that the appeal be accepted.