BIRENDER SINGH Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) BY this common judgment, I shall dispose of these three appeals against the three judgments all dated 8th March, 2007 against the common respondent in complaint cases filed by the three appellants under Section 138 of Negotiable Instruments Act (in short NI Act). All the three appeals have similar facts and give rise to same question of law. In all the three appeals, the complainants/appellants filed complaint against respondent No. 2 under Section 138 of NI Act alleging that respondent No. 2 had issued cheques in discharge of loan liability and all these cheques got dishonoured. No payment was made despite notice under Section 138 of NI Act and hence the complaint was filed. The accused/ respondent No. 2 (hereinafter as respondent) took a common stand in all three cases that he had no privity of contract with any of the complainants at any stage of time. The cheques which were subject matter of the complaint were given to the employee of Mr. Nalin Tokas, who used to collect the cheques on account of Chit Fund floated by Mr. Nalin Tokas in the name of Classical Star Chit Fund Private Limited. Signed cheques were given in advance to ensure the payment of monthly chit amount by the respondent. The respondent on each cheque had mentioned 'Not to exceed Rs. 10,000/-' since the chit installment was below Rs. 10,000/-. Mr. Nalin Tokas had taken 20 cheques from the respondent when respondent became member of the Chit Fund. However, during the continuation of Chit Fund a dispute arose between Mr. Nalin Tokas and the respondent about which a complaint was lodged by respondent to DCP (Vigilance) on 12.10.2003 and 21.10.2003. The respondent had alleged that despite receiving payment of monthly chit amount, cheques were not returned by Nalin Tokas and his employees assuring that the cheques would be destroyed. Complainant blamed that the blank cheques were misused by Mr. Nalin Tokas by putting the blank cheques in the accounts of his different employees and the complaints were filed making the employees as shield. The respondent had also filed an FIR with the police in respect of misuse of his cheques.

(2.) A perusal of record would show that in all three cases, notices were served upon the respondent by the same Advocate about dishonour of the cheques and in all three notices the same plea was taken that the respondent had taken loan in cash and had issued cheques. However, in none of the three cases, the cheques amount was equivalent to the loan amount. In Crl. Appeal No. 771/2007 while cheque amount was Rs. 19,800/- the loan amount was shown as Rs. 20,000/-. In Crl. Appeal No. 772/2007, the loan amount was alleged to be Rs. 30,000/- and the cheques amount was Rs. 29,200/-. In Crl. Appeal No. 773/2007 the loan amount was stated to be Rs. 15,000/- while cheque amount was Rs. 15,700/-. The learned Metropolitan Magistrate observed that from the testimony of complainant and cross-examination of complainant, it was apparent that there were deviations in the evidence of each case from the facts stated in the complaint. In Crl. Appeal No. 771/2007, the complainant stated in the complaint that cheques were issued for lesser amount and it was assured that remaining amount of Rs. 200/- would be paid later on. During evidence the complainant changed the stand and stated that the amount of Rs. 200/-was paid in cash and cheques for Rs. 19,800/- were issued. In Appeal No. 772/2007, the complainant initially stated that cheques were issued to him with amount filled in at the bus stand but during his cross-examination, he stated that the cheques were not issued with filled-in amount but only with an endorsement that cheques would be not more than Rs. 10,000/- was there and the accused later on after reaching home telephoned him that such and such amount and date be filled in the cheques. He also could not explain why the cheques were not of the exact loan amount and were of lesser amount than the loan amount by Rs. 800/-. In Crl. Appeal No. 773/2007, the complainant could not explain as to why the respondent issued cheques of more amount than the loan amount.

(3.) IT is argued by the Counsel for the appellants that the trial Court wrongly held that the accused need not rebut the presumption by direct evidence and could disprove the case without holding evidence. The appellant relied upon II (2001) BC 773 (SC)=III (2001) CCR43 (SC)=(2001) BC 773 (SC), Hiten P. Dalai v. Bratindra Nath Banerjee wherein Supreme Court observed as under: