PR. COMMISSIONER OF INCOME TAX-6, NEW DELHI vs. NANDA MINT & PINE CHEMICALS LTD.

$~2 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 680/2016 RAJ KUMAR ..... Petitioner Through: Mr. C.M. Grover, Adv. versus IQBAL KAUR ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE A.K. PATHAK O R D E R % 06.03.2017 Petitioner seeks leave to appeal against the judgment dated 29th September, 2016 passed by the learned Metropolitan Magistrate whereby respondent has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act, for short). Petitioner has alleged in the complaint that he was having friendly relations with the respondent. In the first week of April, 2009, respondent approached him and requested for grant of loan of `1 Lac. Accordingly, petitioner gave ` 1 Lac to the respondent and in lieu thereof, respondent issued two cheques bearing no. 476313 dated 23rd June, 2009 for `50,000/- and cheque bearing no. 476314 dated 26th June, 2009 for `50,000/- both drawn on Oriental Bank of Commerce, Tej Mandi, Alwar. However, on presentation, these cheques were dishonoured vide memos dated 29th June, 2009 and 1st July, 2009

respectively with the remarks ‘Account Closed’. Respondent did not pay the cheque amount despite service of legal notice dated 24th July, 2009. Hence the complaint. Petitioner tendered his evidence by of way of affidavit and proved the cheques as Ex. CW1/A and CW1/B. Returned memos were proved as Ex. CW1/C to CW1/F. Legal notice together with postal receipts were proved as CW1/G to CW1/I. He also examined one Satish Kauchar as CW2. In her statement under Section 313 Cr.P.C., respondent alleged that she had kept 8 to 10 blank signed cheques in her drawer for the use of her family members in her absence. When the cheques were not found in the drawer, she closed her bank account. She further alleged that Vinod Kumar, who is the younger brother of petitioner, used to live as a paying guest on the ground floor of her house and was having visiting terms with her. She alleged that Vinod Kumar could have stolen her blank signed cheques from the drawer and the same were subsequently misused. Trial court has noted that there are material discrepancies in the statement of CW1 (petitioner), vis-a-vis, the case set up by him in the complaint created a doubt and supported defence of respondent on preponderance of probability. Trial court has concluded that respondent has

succeeded in rebutting the presumption under Section 139 of the Act. I do not find the view taken by the trial court to be perverse in the evidence adduced by the parties. Though, the case set up by the petitioner in the complaint was that he had advanced a loan to the respondent but, in his cross-examination, petitioner stated that respondent’s son, namely, Happy Singh was known to him as he was transporter of his firm. Happy Singh demanded `1 lac from him and when petitioner asked Happy Singh to show some cheques, he told that he was not having any bank account in his name, however, he can give cheques of her mother’s account. Accordingly, Happy Singh, along with her mother (respondent), came to the office of the petitioner and handed over the cheques to the petitioner. Petitioner also admitted that he was income tax payee but had not disclosed about the loan in his income tax return. He deposed that he took `75,000/- from Satish Kauchar in cash and remaining `25,000/- were with him. CW2 Satish Kauchar has not supported the version of the petitioner. CW2 deposed that petitioner had taken `1 lac from him. In his cross-examination, CW2 admitted that he had not mentioned this amount in his income tax return. As per CW1, he had taken `75,000/- from CW2 Satish Kauchar, however, CW2 had stated that he had given `1 lac to the petitioner. CW2 has failed to

disclose the date and year when he allegedly gave `1 lac to the petitioner. CW1 further admitted that his brother Vinod Kumar was also engaged in the transport business. He further admitted that his brother Vinod Kumar used to visit Alwar frequently and was a good friend of respondent’s son- Happy Singh. However, petitioner denied that Vinod Kumar used to stay at respondent’s house. He stated that Vinod Kumar used to stay in a rented accommodation, in separate premises, in the same locality. He further admitted that Vinod Kumar was known to the respondent’s son. In view of the evidence as discussed above, I find the view taken by the trial court as a possible view and does not suffer from any perversity. Accordingly, I do not find it to be a fit case to grant leave to appeal to the petitioner against the acquittal of the respondent. Petition is dismissed. Miscellaneous Application is disposed of as infructuous. A.K. PATHAK, J. MARCH 06, 2017 ga