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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 22.04.2024

+ CRL.A. 981/2019 & CRL.M.A. 34181/2019

AJIT KUMAR ..... Appellant
Through: Mr Shiv Kumar Kohli, Advocate.
versus

STATE & ANR. ..... Respondents

Through: Mr Raj Kumar, APP for the State.

CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

1. The present appeal has been filed against the impugned order dated
06.06.2019 passed by the learned Metropolitan Magistrate-09, South-East
District, Saket Courts, New Delhi, whereby the complaint of the appellant
was dismissed and the respondent no.2/accused was acquitted of the offence
under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’)
2. The complaint was filed by the complainant under Section 138 of the
NI Act alleging that the accused had entered into three agreements dated
19.01.2015, 21.02.2015 and 23.03.2015 with the complainant for a sum of
Rs.1,00,000/- each. Under the agreement dated 19.01.2015, a sum of
Rs.1,00,000/- was advanced by the petitioner/complainant to the
respondent/accused @ 5% p.m. and after deducting the first instalment of

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 interest, an amount of Rs.95,000/- was paid to the accused/respondent. The
second agreement dated 21.02.2015 contains only one line wherein it has
been mentioned that a further amount of Rs.1,00,000/- has been received by
the respondent/accused. The third agreement dated 23.03.2015 contains a
narration to the effect that further amount of Rs.1,00,000/- has been received
by the complainant/accused at interest of @ 3% p.m..
3. It is the case of the petitioner/complainant that two security cheques
of Rs.1,00,000/- each were issued by the respondent/accused to the
petitioner/complainant. As the respondent/accused failed to repay the loan
amount, the petitioner/complainant was constrained to present the said two
cheques, both bearing the date 15.02.2018. However, the cheques were
returned unpaid with the remarks “account closed”.
4. Notice under Section 138 of the NI Act was given by the
petitioner/complainant and thereafter, a complaint was instituted under
Section 138 read with Section 142 of the NI Act.
5. Notice under Section 251 CrPC was framed against the
respondent/accused to which the respondent/accused pleaded not guilty and
claimed trial. In the said notice, specific defence was also taken by the
respondent/accused that he had given three cheques to the
petitioner/complainant with an understanding that the complainant will pay
the loan of Rs.3,00,000/- but thereafter, the petitioner/complainant failed to
give an amount of Rs.3,00,000/- to the accused.
6. The petitioner/complainant examined himself as CW-1 and he was
cross-examined by the respondent/accused. Thereafter, the statement of the
accused under Section 313 CrPC read with Section 281 CrPC was recorded
wherein it was stated by the respondent/accused that both the cheques were

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 given in advance for security purpose.
7. The learned Metropolitan Magistrate after examining the evidence on
record recorded a finding that the petitioner/complainant had failed to prove
that the respondent/accused had executed any loan agreement/receipt
(Ex.CW-1/1).
8. Learned counsel for the petitioner invites the attention of the Court to
three agreements, to contend that the said three agreements bear the
signatures of the respondent/accused, therefore, the payment of
Rs.3,00,000/- by the petitioner/complainant stood proved.
9. He further submits that the respondent/accused had admitted his
signatures on the cheques as well, therefore, in view of the presumption
under Section 139 of the NI Act, the learned Metropolitan Magistrate ought
to have allowed the complaint of the petitioner/complainant. He submits
that the learned Metropolitan Magistrate has wrongly concluded that the
petitioner/complainant has not proved that the cheques were issued in
discharge of legally enforceable debt.
10. Per contra, learned counsel for the respondent no.2 has invited the
attention of the Court to the cross-examination of the petitioner/complainant
(CW-1), to contend that in the cross-examination for the first time the
petitioner/complainant had taken a stand that an amount of Rs.1,00,000/-
was given cash on three occasions.
11. She submits that there is nothing on record to suggest that the
petitioner was possessing that much cash amount with him at the relevant
time. She further contends that the petitioner/complainant in his cross-
examination has feigned ignorance with regard to three agreements executed
between the parties, rather he specifically mentioned that the said

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 transactions took place in the presence of his uncle, therefore, he only could
tell about the execution of agreement, but the complainant did not examine
his said uncle in support of his case, therefore, an adverse inference in terms
of Section 114(g) of the Evidence Act has to be drawn.
12. She further contends that it is also the case of the
petitioner/complainant in his cross-examination that he handed over money
to the respondent/accused at his uncle’s house in the presence of his uncle,
aunt and their children, but again none of them have been examined. She
thus, submits that the view taken by the Trial Court is a plausible view and
there is no perversity in the same.
13. I have examined the evidence and the material on record with the
assistance of the learned counsel for the parties and have also gone through
the judgment of the learned Metropolitan Magistrate.
14. The complainant in his examination had feigned ignorance about the
execution of any agreement and further stated that his uncle could shed light
on the execution of the agreements. Likewise, the complainant also stated
that money was handed over by him to the respondent in presence of his
uncle, aunt and their children. Intriguingly, none of the said persons have
been examined. Further, one Khem Chand Koli is witness to the agreements
collectively exhibited as Ex.CW-1/1 but the complainant has not even
examined the said Khem Chand Koli. In this backdrop the learned Trial
Court concluded that the complainant had failed to prove such loan
agreements/receipts Ex.CW-1/1. The relevant findings of the learned Trial
Court read as under:-

“12. In the present case, it is alleged that complainant gave

loan of Rs.3 lacs in cash in three installments of Rs.1 lac each

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 to accused. Accused raised the defence that no such loan was
taken by him.
13. To prove the loan transaction the complainant has
heavily relied upon alleged loan agreement Ex.CW1/1.
However, during his cross-examination, complainant deposed
that:
Only two agreements for initial transactions
of Rs.1 lac each were prepared. No agreement for
third transaction was prepared (Vol. Accused
assured me to execute one agreements for all three
transactions after handing over the documents of
this vehicle. But no agreement was executed by
him).
Ques. I put it to you that firstly you admitted
execution of two agreements for first two
transactions but now stated that no such agreement
was executed for all three transactions. Which one
of both is correct?
Ans. I am illiterate. I do not remember the
execution of any agreement. All the transactions
took place in the presence of my uncle. Therefore,
he can tell about the execution of agreement.”

14. In view of above testimony, complainant failed to prove

that accused has executed any such loan agreement/receipt
Ex.CW1/1. Khem Chand Koli is witness for execution of
Ex.CW1/1. Complainant did not examine Khem Chand Koli to
prove the execution Ex.CE1/1 by the accused. Thus Ex.CE1/1
cannot be considered into evidence because it has not been
proved by any of the witness examined by the complainant.”

15. Further, as per the case of the appellant/complainant the loan of Rs.3
lakhs was advanced in cash which had been arranged by him from the profit
of his shop, but the appellant neither produced his ITR nor books of

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 accounts to substantiate his source, as well as, the capacity to advance the
loan of said amount. The testimony of the appellant/complainant was also
found by the learned Trial Court to be inconsistent. The findings of the
learned Trial Court in this regard reads thus:

“15. Accused has also raised concern about the financial

capacity of complainant to grant loan of Rs.3 lacs.
Complainant deposed as follows to prove the source of loan of
Rs.3 lacs.
“I run a shop of mobile repairing at Sanwal
Nagar since 12-13 years. Prior to that I was
running a shop of namkeen/biscuits. I had filed my
ITR 4-5 years ago thereafter I did not file any ITR.
I have also filed my ITR in the last year. I can
produce my recent ITR only but cannot produce
my previous ITR. It is wrong to suggest that I am
deliberately suppressing my previous ITR because
it was never filed. I am living in joint family
consisting of my mother, brother, sister-in-law and
their two children. I am bachelor. My brother was
doing nothing in the year 2014-2015 and 2016 but
he used to sit at shop alongwith me. My monthly
household expenses were Rs.12000-13000 in the
year 2013-2014 and 2014-2015. The monthly
expenditure at the shop is somewhere Rs.1200-1300
in the year 2013-2014 and 2014-2015. I cannot
produce any document that I was running a shop
of mobile repairing/recharge in the year 2014-
2015.”
16. Complainant also deposed that he arranged the loan
amount from the profit of his shop. Complainant neither
produced his ITR nor produced books of his shop to prove his
financial capacity to grant loan of Rs.3 lacs to the accused.
Under the provision of section 269ss Income Tax act, a loan
of more than Rs.20,000/- cannot be given in cash. The story
of the complainant cannot be relied upon especially in the

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 absence of any documentary evidence. If there were sufficient
funds were available with the complainant then why he did
not give the loan to the complainant through cheque or by
bank transaction. All these facts and circumstances belied the
story of complainant. The oral testimony of the complainant
does not inspire confidence in absence of any documentary
evidence for payment of Rs.3 lacs.
17. Moreover, the said amount was unaccounted money
and it was not a legally recoverable debt. It was held in case
titled as G. Pankajakshi Amma case (supra) that if these are
unaccounted transactions then they are illegal transactions.
No court can come to the aid of the party in an illegal
transaction. Hence, complainant has miserably failed to
prove that there is a legally recoverable debt payable by the
accused.
18. The case of the complainant has been very inconsistent
and the complainant has floundered, as the cross-examination
progressed and from this it can be safely concluded that the
complainant has proved himself to be unreliable and this has
made way for the accused to prove the non existence of
consideration; or atleast that it was improbable or doubtful.”
(emphasis supplied)

16. This Court finds that the aforesaid view taken by the learned
Metropolitan Magistrate of the evidence on record is a possible view. The
learned counsel for the petitioner has not been able to point out any
perversity in the findings recorded by the learned Metropolitan Magistrate.
17. It is trite law that the scope of interference in an appeal against
acquittal is very limited. Unless it is found that the view taken by the Court
is impossible or perverse, it is not permissible to interfere with the finding of
acquittal. Equally if two views are possible, it is not permissible to set aside

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 an order of acquittal, merely because the Appellate Court finds the view of
conviction to be more probable. The interference would be warranted only if
the view taken is not possible at all.1 Reference in this regard may be had to
the decision of the Hon’ble Supreme Court in K. Prakashan vs. P. K.
Surenderan: (2008) 1 SCC 258 wherein it has been held that if two views
are possible, the appellate court shall not reverse a judgment of acquittal
only because another view is possible to be taken. The relevant extract of
the said decision reads thus:-
“20. It is now trite that if two views are possible, the
appellant court shall not reverse a judgment of acquittal
only because another view is possible to be taken. The
appellate court’s jurisdiction to interfere is limited.
[See M.S. Narayana Menon and Mahadeo Laxman
Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE
137] The High Court furthermore has not met the
reasons of the learned Trial Judge. It proceeded on the
premise that the appellant had not been able to discharge
his burden of proof in terms of Section 139 of the Act
without posing unto itself a further question as to how the
said burden of proof can be discharged. It furthermore
did not take into consideration the legal principle that the
standard of proof upon a prosecution and upon an
accused is different.”
(emphasis supplied)

18. Likewise, in the case of Suman Chandra Vs. Central Bureau of

Investigation, 2021 SCC OnLine SC 3425 wherein the challenge was to the
acquittal of the accused, the Hon’ble Supreme Court held that while
exercising its powers to reverse an acquittal, the order of the trial court must
not only be erroneous, but also perverse and unreasonable. The relevant

1
2022 SCC OnLine SC 984

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 paragraph of the decision reads thus:

"It is well settled law that reversal of acquittal is

permissible only if the view of the Trial Court is not
only erroneous but also unreasonable and perverse. In
our considered opinion, the view taken by the Trial Court
was a possible view, which was neither perverse nor
unreasonable, and in the facts and circumstances of the
present case, ought not to have been reversed or
interfered with by the High Court."

(emphasis supplied)

19. In view of the above, I do not find any infirmity in the impugned
judgment and, therefore, no interference is warranted.
20. Accordingly, there is no merit in the appeal and the same is dismissed.

VIKAS MAHAJAN, J
APRIL 22, 2024
MK

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