N CHIRAG TRAVELS P LTD Vs. ASHWANI KUMAR

JUDGEMENT

(1.) BY way of this application filed under Section 378, Cr. P. C. the applicant seeks grant of special leave to appeal against the order of acquittal dated 12. 9. 2005 passed by the Court of Mr. A. K. Sarpal, Metropolitan Magistrate, New Delhi in Complaint Case No. 1998/1/03 titled as n. Chirag Travels (P) Ltd. v. Ashwani kumar. Brief facts relevant for deciding the present application are: that the accused Sh. Ashwani Kumar, respondent No. 1 herein approached the complainant M/s. N. Chirag Travels (P) Ltd. , appellant herein for purchase of air tickets which were duly supplied and received by him vide invoice no. 4932 for Rs. 20,667/-; invoice no. 4933 for Rs. 23,670/- and invoice no. 4934 for Rs. 13. 504/ -. The accused as consideration of the tickets purchased and in discharge of his liabilities, signed and issued a cheque bearing No. 486618 dated 6. 8. 2003 drawn on HDFC Bank Ltd. , S-65, G. K.-I, New delhi for Rs. 56,690/- from an account maintained by him in the name of M/s. Bake Town, of which he is the authorized signatory. The aforesaid cheque when presented for encashment was dishonoured due to 'stop payment' vide cheque returning memo dated 7. 8. 2003 and despite receipt of demand notice dated 5. 9. 2003 sent through registered post, the accused failed to pay the cheque amount and hence the complaint under Section 138, N. I. Act, 1881 was made against the accused. Based on the said facts and after taking into consideration the pre-summoning evidence, the concerned magistrate took cognizance of the offence against respondent No. 1. On merits the applicant examined one witness, namely, Avdesh Singh who was cross-examined by Counsel for respondent No. 1. In his statement recorded under Section 313, Cr. P. C. respondent No. 1 stated that he had issued cheque in a sum of Rs. 56. 690/-as advance payment for three air tickets but got the same stopped as he had received only one ticket against one invoice. Counsel also stated that he was ready to make the payment against one air ticket issued against invoice for a sum of Rs. 20,667/ -. Learned Magistrate after taking into consideration the said facts and evidence adduced in support thereof came to the conclusion that the applicant failed to establish that it had in fact supplied three tickets to respondent no. 1. The Court also did not feel convinced with the genuineness of the invoices placed on record by the applicant. The court also drew adverse inference against the appellant due to non-examination of Ms. Rica Goldsmith and M. S. M. Singh, beneficiaries of the other two air tickets.

(2.) AGGRIEVED with the said order of acquittal, Mr. Puneet Mittal, Counsel appearing for the applicant raised a serious challenge to the said decision of the Trial Court ignoring the mandate of law laid down under section 139 of the Negotiable Instruments act, 1981. The contention of the counsel for the applicant was that Section 139 of the Negotiable Instruments Act raises a presumption in favour of the holder of the cheque, the same being issued in discharge of the liabilities, until the contrary is proved. The fact of issuance of cheque by respondent No. 1; the same getting dishonoured after its presentation by the applicant and receipt of demand notice, once. these three factors are established by the complainant, then, it is for the accused to prove in contradiction to show as under what circumstances the cheque issued was not towards the discharge of the legal debt. Mr. Puneet Mittal, Counsel for the applicant further contended that the said fact could be rebutted by the drawer only by adducing evidence on record, in defence and not merely by giving some suggestions to the witness of the complainant in cross-examination. Mr. Puneet Mittal further submitted that the applicant had sufficiently proved before the Trial Court that three invoices were separately raised in the name of respondent No. 1 besides proving the prepaid ticket advise for the passenger travelling on behalf of the accused at Mumbai airport. Counsel thus stated that the Trial court has unnecessarily given undue weightage to the non-examination of Ms. Rica Goldsmith and M. S. M. Singh, the two beneficiaries of air tickets. He further submitted that the learned Trial Court has unnecessarily raised suspicion on the invoices proved by the applicant on record as well as prepaid ticket advice, confirmation of which was received from the Jet Airways. In support of his arguments Counsel for the applicant has placed reliance on the following judgments: 1. Goa Plast (P) Ltd. v. Chico Ursula D'souza. 2. Hiten P. Dalai v. Bratindranath Banerjee; and 3. Suthendraraje @ Suthenthire Raja @ santhan and Ors. v. State.

(3.) OPPOSING the grant of special leave Mr. Chander M. Maini, Counsel appearing for respondent No. 1 vehemently contended that there is a very limited scope for the high Court to interfere with the acquittal order unless there are very strong reasons which can dislodge the findings arrived at by the Trial Court. Even in a case where two possible views can be found from, the material on record, one in favour of the accused and the other against the accused, the high Court would not reverse the acquittal merely because it finds the other view more plausible or preferable, Counsel contended. Counsel further submitted that for proving guilt of the accused, the prosecution has to prove the case beyond all reasonable doubt and the same standard of proof is not required for the defence. The contention of the counsel for the respondent is that it is not necessary for accused to give his own evidence in defence and he may discharge his burden on the basis of the material already brought on record wherefrom he can show enough suspicion to disapprove the case of the complainant. An accuse has a constitutional right to maintain silence and standard of proof as required of the prosecution and of the accused in a criminal case stand on different pedestal, contended Counsel for the respondent. Elaborating his arguments further Counsel contended that the applicant failed to prove on record that three air tickets were availed by respondent No. 1 or same were duly delivered by the applicant to respondent No. 1 or the said two beneficiaries of the two air tickets were at the instance of respondent No. 1. Right from the initial stage respondent No. 1 had admitted his liability for payment of fare of one air ticket i. e. Rs. 20. 667/- and this in itself would show complete honesty on the part of respondent no. 1, contended, Counsel for respondent No. 1. Counsel also submitted that in cross-examination of the applicant's witness Mr. Avdesh Singh the entire case of the applicant got demolished and that was sufficient enough to rebut the presumption as drawn in favour of the applicant under section 139 of the Negotiable Instruments act.