Delhi District CourtKashmir Singh vs Sansar Chand on 24 January, 2011CC No.413/A/2010
                                                                       Kashmir Singh Vs Sansar Chand


                 IN THE COURT OF SH. VIPLAV DABAS
                     METROPOLITAN MAGISTRATE
              DISTRICT-NORTH, TIS HAZARI COURTS, DELHI

KASHMIR SINGH                                          Date of institution of case: 19.04.2005 
VS.                                                    Date of decision of case      : 24.01.2011
SANSAR CHAND CHAUDHARY


                                                       Unique ID No.02401RO259312005
                                                       CC.NO.413/A/10
                                                       P.S.-TIMAR PUR
                                                       U/S 138Negotiable Instrument ActJ U D G M E N T1.   Date of the commission of the 
     offence                                      : 07.04.20052.   Name & address of the 
     complainant                                  : KASHMIR SINGH
                                                     S/o. Sh. Sujada Ram
                                                     R/o.House No.540, Gali No.4
                                                     Bawa Colony, Burari
                                                     Delhi­843.   Name of accused person and 
     his parentage and residence                  : SANSAR CHAND CHAUDHARY
                                                    S/o. Sh. Milkhi Ram
                                                    R/o. Village & Post Office
                                                    Garh Jamola (In Bagru Area)
                                                    Tehsil Palampur
                                                    Distt. Kangra (H.P.)

     Also at                                      : House No.544, Gali No.4
                                                    Bawa Colony, Burari
                                                    Delhi­84.4.   Offence complained of                        :   u/s.138 of Negotiable Instrument Act5. Plea of the accused and his 
      examination if any                          :     Pleaded not  guilty.Examinationu/s.313Cr.PC
                                                       Defence evidence was led.6.   Final Order                                  : Held guilty. Convicted.7.   Date of such order                           : 24.01.20111/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand


BRIEF FACTS OF THE CASE ARE AS FOLLOWS:1.        It is the case of the complainant that he along with accused,

being neighbours, entered into an oral partnership of plying commercial

vehicle for transportation of goods and in pursuance of said partnership,

complainant and accused purchased a truck bearing no.HR 55-5805 in

October 2000. It is stated that as per oral agreement, complainant

invested Rs.1,50,000/- and remaining sum was agreed to be financed.Both parties agreed to share profits and losses equally.2.        It is stated that with passage of time, complainant realized

that accused is not taking interest in business and not accounting for

profits thereby constraining the complainant to withdraw from the

partnership business. Both parties arrived at amicable settlement and in

terms of settlement, possession of vehicle was taken over by the

accused on 20.09.2003 and the accused agreed to pay Rs.2,50,000/- to

the complainant. As per settlement, Rs.1,00,000/- was paid in cash to

the complainant and accused undertook to pay remaining sum of Rs.

1,50,000/- on or before 20.11.2003. A declaration dated 20.09.2003

was also executed by accused to this effect.2/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand3.         It is stated that accused failed to honor his commitment by

20.11.2003 and kept on requesting for grant of more time for payment.

The payment remained outstanding till December 2004. However,

thereafter with intervention of respectables in society in last week of

December 2004, accused issued the following post dated cheques:a.      Cheque no.287190 dated 07.03.2005 amounting to Rs.50,000/-payable at Kangra Co-op.Bank Ltd., Prashant Vihar, Delhi.

b.      Cheque no.287191 dated 07.03.2005 amounting to Rs.50,000/-payable at Kangra Co-op.Bank Ltd., Prashant Vihar, Delhi.

c.      Cheque no.287192 dated 07.03.2005 amounting to Rs.50,000/-payable at Kangra Co-op.Bank Ltd., Prashant Vihar, Delhi.4.         It is stated that complainant deposited aforesaid cheques for

encashment on 09.03.2005 through its Banker Punjab National Bank,

Burari, Delhi, but all three cheques returned dishonored with remarks

'insufficient   funds'   by   memo     dated   10.03.2005     which       were

communicated to the complainant by banker on 11.03.2005.3/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand5.         After dishonor of cheques, complainant intimated about the

status of the cheques to the accused but accused paid no heed to the

requests. Thereafter complainant issued legal notice dated 16.03.2005

to accused at both of his addresses.6.         It is stated that accused issued aforesaid cheques with

fraudulent and dishonest intention knowing that same will be

dishonored, thus committing offence underSection 138of Negotiable

Instrument Act.7.         On     the   basis   of   pre-summoning   evidence,       my      Ld.

Predecessor summoned the accused for offenceu/s.138NI Act on

19.04.2005 and noticeu/s.251of the Code of Criminal Procedure, 1973

for an offence punishableu/s.138of the Negotiable Instruments Act,

1881 was framed on 21.03.2006. To said notice accused pleaded 'not

guilty' and claimed trial.8.         For discharging his onus, complainant has examined

following witnesses:4/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand


a.        CW1, Kashmir Singh (affidavit in chief is exh.CW1/1A). This

witness has brought on record following documents:i.        Copy of declaration/affidavit dated 20.09.2003, exh.CW1/1.
ii.       Original cheques, exh.CW1/2, CW1/3 and CW1/4.iii.      Copies of deposit slips exh.CW1/5.
iv.       Cheque returning memos exh.CW1/6, CW1/7 and CW1/8.
v.        Legal Notice dated 16.03.2005 exh.CW1/9.
vi.       Postal Receipts exh.CW1/10 and CW1/11.
vii.      Undelivered Registered AD envelope exh.CW1/12.
viii.     Copy of reply dated 12.04.2005 to legal notice exh.CW1/149.        CW1/Complainant in his affidavit in chief has reaffirmed and

restated the averments made in the complaint.9a.       CW1 in his cross examination has admitted that truck bearing

no. HR-55-5805 was purchased in October 2006 in the name of Sansar

Singh. Initial payment to the tune of Rs.2,34,000/- to Rs.2,41,000/- was

made to ICICI Bank and no other additional amount was paid. He has

admitted that total price of truck was Rs.6,50,000/-. He has admitted

that additional amount of Rs.2,75,000/- was paid by him after premature

encashment of FDs from State Bank of Patiala and Punjab National5/34CC No.413/A/2010
                                                    Kashmir Singh Vs Sansar Chand


Bank, Burari. He has denied about knowledge of surety/security given

to ICICI Bank. He has stated that account was settled with Sansar

Singh on 20.09.2003 and vehicle was given to accused. He has

admitted that both accused and he were bound to follow affidavit

20.09.2003. He admitted that in February 2003 truck met with an

accident and Rs.35,000/- were incurred as expenses. He has admitted

that at the time of accident only three installment were due towards

ICICI Bank.9b.       He has denied knowledge as to why the three cheques in

question were of same date and presented on same date. He has

denied receipt of reply of legal notice from accused prior to filing of

complaint. He has denied the purchase of truck bearing no. DL-1G

4405 along with accused in his own name. However, he has admitted

that said truck was sold in year 2000 for a sum of Rs.2,79,000/- and

proceeds of it came into partnership. He has admitted that another truck

bearing no.HR-559805 was purchased and proceeds of Rs.2,79,000/-

were spent on this truck for making its body, chasis etc. He has denied

that truck was not financed from ICICI Bank and was financed from

M/s.Interstate Finance. He has denied that truck was refinanced from6/34CC No.413/A/2010
                                                    Kashmir Singh Vs Sansar Chand


M/s.Juneja Finance Company after resettling the account with previous

financer. He has admitted that on 20.01.2003 truck met with an accident

while coming from Karnataka to Delhi. He has denied that Rs.96,480/-

were incurred by accused for repair. He has denied investment of Rs.

1,73,150/- by accused from his pocket and his own outstanding liability

towards partnership losses of Rs.1,34,784/- prior to date of settlement

i.e. 22.09.2003. He has denied that engine of truck was seized in Leh

at Rohtang Pass and truck was taken to M/s.Lucky Automobiles for

repair in Himachal Pradesh. He has denied any knowledge about repair

and the person who lifted truck from M/s.Lucky automobiles. He has

denied that M/s.Juneja has handed over three cheques in question as

award for lifting the truck. He has denied that cheques in question were

given to him by Juneja Finance Company. He has denied the

suggestion as to prior liabilities in view of para-7 of the affidavit/

declaration exh.CW1/1.10.       Statement of accused underSection 313of the Code of

Criminal Procedure, 1973 was recorded by my Ld. Predecessor on

10.01.2008. Accused in his defence has examined following witnesses:7/34CC No.413/A/2010
                                                   Kashmir Singh Vs Sansar Chand




10a.     Sansar Chand/DW1 (affidavit exh.D1). Following documents

have been brought on record by this witness:a)       Copy of reply to legal notice dated 12.04.2005, exh.DW1/A
         already exhibited as Exh.CW1/14.b)       Copy of Statement of account dated 22.05.2006, Mark A
         of financer M/s.Interstate Finance Ltd.c)       Copy of statement of Bank account of accused dated
         25.07.2007, Exh.DW1/B (OSR)d)       Copy of Bill dated 27.11.2004 on letter head of Surjit Motors,
         Pathankot, Mark Be)       Copy of bill dated 27.11.2004 on letter head of Bharat Motors
         & Electric works, Pathankot, Mark Cf)       Copy of bill on letter head of Ramesh Diesel Service,
         Pathankot dated 27.11.... Mark D



10b.     Kulbhushan/DW2,       brought    on   record     the      following

documents:a)       Bill dated 27.11.2004, Mark A.
b)       Bill dated 27.11.2004, Mark B.
c)       Bill dated 27.11.2004, Mark C.8/34CC No.413/A/2010
                                                   Kashmir Singh Vs Sansar Chand




10c.     Om Prakash/DW3 (affidavit Exh.D-3). Following documentshave been brought on record by this witness:a)       Copy of legal notice dated 01.01.2007, Exh.DW3/A (OSR)b)       Copy of postal receipt, Exh.DW3/B (OSR)c)       Copy of Postal Receipt and acknowledgment, Exh.DW3/C
         (OSR)



10d.     Harvinder Singh/DW4 (summoned witness). This witness

has brought on record following documents :a)       Form 34, Exh.DW4/1.
b)       Copy of cheques given by him to accused at time of re-
         finance Mark X.
c)       NOC, Mark Y.
d)       Notice dated 28.07.2008, Mark Z.11.      After recording of statementu/s.313of the Code of Criminal

Procedure, 1973, the application of accused for examining himself as

witnessu/s.315of the Code of Criminal Procedure, 1973 was allowed

by order dated 30.07.2008 and accused was examined as DW1.9/34CC No.413/A/2010
                                                           Kashmir Singh Vs Sansar Chand12.       Accused in his statementu/s.313of the Code of Criminal

Procedure,     1973   has   admitted        unregistered     partnership          with

complainant. Accused has admitted that the vehicle was registered in

his name. It is stated that the said vehicle got damaged and entire

liability of finance company was fastened upon accused wrongly. In

order to discharge dues of finance company, accused was forced to

take fresh loan from Juneja Finance Company. Accused has admitted

that he issued three cheques in question besides other cheques to

Juneja Finance Company in blank with only signatures thereupon.

However, accused has stated that he never issued cheques to

complainant and do not know how those cheques were procured by

complainant.Accused in answer to question no.4 have not denied receipt

of legal notice. However, accused has relied upon answer no.1 and

reply to legal notice exh.CW1/14.13.       In affidavit in chief exh.D1 has admitted the factum of oral

partnership. The following facts have been deposed by DW1.a)        DW1/accused has admitted the factum of running of transport

business upon oral agreement with complainant sharing Profit and Loss10/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


equally.b)         It is stated that initially truck bearing registration no.DL IG

4405 was purchased from joint and equal contribution in the name of

the complainant. The said truck was sold in the year 2000 and sale

proceeds of Rs.2,79,000/- were realised and the same were put in

partnership pool.c)         Thereafter, another truck bearing no.HR 55-5805 was

purchased. Aforesaid sum of Rs.2,79,000/- was spent on body, chasis

etc. Remaining cost of Rs.4 Lac was financed from M/s.Interstate

Finance and was repayable in 36 equal monthly installments of Rs.15,272/- This truck was purchased in the name of accused.d)         Due to financial difficulties the aforesaid loan remained

unpaid and said truck was refinanced from M/s.Juneja Finance

Company for a sum of Rs.2,25,000/- only.e)         It is stated that after clearing of loan of M/s.Interstate

Finance, 4/5 unpresented signed blank cheques were received back

from M/s.Interstate Finance.f)         It is stated that aforesaid 4-5 unpresented cheques received

from M/s.Interstate Finance along with few other cheques (totalling 24

in number) were issued to M/s.Juneja Finance Company. It is stated11/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


that all these cheques were blank and only signed by the accused.

These cheques were issued in July 2003.g)        It is stated that new truck HR 55-5805 met with an accident

on 20.01.2003 and a loss of Rs.98,418/- was incurred.h)        It is also stated that at time of purchase of this truck, accused

had paid Rs.1,73,150/- from his own pocket. Therefore, a total of Rs.

2,69,568/- (98418 + 173150) was spent by accused, out of which half of

the sum of Rs.1,34,784/- was to be borne by complainant being partner

which was never paid by him.i)        It is admitted by the accused that on 20.09.2003 accused and

complainant settled their account mutually. It is also admitted that

complainant withdrew from partnership against a sum of Rs.1,50,000/-

and gave exclusive right of truck to the accused. Accused has also

admitted settlement deed/declaration dated 20.09.2003.j)        It is stated that as per para 6 of declaration deed dated

20.09.2003, complainant agreed to share equally all previous damage,

losses, claims etc which comes to Rs.1,34,784/-. It is stated that after

adjustment of losses, complainant is entitled only to Rs.15,216/-

(1,50,000/- - 1,34,784/-).12/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chandk)         It is stated that accused has never issued cheque no.287190,

287191 and 287192 in favour of complainant. It is stated that these

three cheques have been obtained by complainant from M/s.Juneja

Finance Company to deceive the accused.l)         It is stated that on 27.10.2004, engine of truck no.HR 55-5804

seized at Rohtang Pass and was towed by crane to M/s.Lucky

Automobiles, Joginder Nagar, H.P. It is stated that on 12.12.2004,

complainant in collusion with M/s.Juneja Finance Company took away

the truck from M/s.Lucky Automobile after paying crane and repair

charges of Rs.16,000/-. The said truck was brought to Delhi and as a

award M/s.Juneja Finance company issued three disputed cheques to

accused.m)         It is also   stated that series of cheques in statement

Exh.DW1/B shows that there cannot be possibility of issuing cheques in

March 2005 for a series which was prior to August 2003.



13a.       DW1 in his cross examination has admitted the execution of

document exh.CW1/1 and that the partnership was dissolved on

20.09.2003. He has admitted that he agreed to pay Rs.1,50,000/- to

complainant. He has also admitted that        he did not demand Rs.13/34CC No.413/A/2010
                                                       Kashmir Singh Vs Sansar Chand


1,34,784/- from complainant till date in writing. DW1 has admitted that

cheque nos. 287190, 287191 and 287192 have been issued to him by

his bankers. He has also admitted his signatures on these cheques.

DW1 has admitted receipt of legal notice CW1/9 dated 16.03.2005 and

has admitted non payment of amount demanded in the said notice. He

has admitted that he has not initiated any proceedings (civil or criminal)

against M/s.Juneja Finance Company and complainant after receipt of

the legal notice exh.CW1/9. DW1 has denied suggestion that aforesaid

three cheques were issued to complainant in terms of undertaking

dated 20.09.2003.This witness has stated himself to be matric pass. But was

stated that " I am not aware about the contents of the affidavit exh.D-1" .14.       DW2 Kulbhushan has deposed that the truck HR 55-5805

was brought for repair to M/s.Lucky Automobiles, Joginder Nagar,

Himachal Pradesh on 23.11.2004. This witness is employee of

M/s.Lucky Automobile. He has deposed that said vehicle was repaired

and bills of repair were issued. He has stated that truck was ready for

delivery on 07.12.2004. However, when Mr.Sansar Chand/Accused

went to his home to arrange Rs.16,000/- for release of vehicle,14/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


complainant and some other persons from M/s.Juneja Automobiles paid

Rs.16,000/- and got vehicle released in absence of the accused. It is

stated that subsequently he learnt that truck has been taken away at

behest of complainant unathourisedly and without the consent of

accused, in order to recover dues of finance from accused.



14a.      In cross examination DW2 has stated that he is working as

employee with M/s.Lucky automobile since 02.01.2004. He has

admitted that he has no document pertaining to his employment in said

workshop. He has also admitted that bills Mark A to Mark C are not

written in his handwriting. It is stated that the documents Mark A to C

have been brought without permission of owner Sh.Satish Kumar. He

has stated that he is not aware about content of his affidavit Exh.D-2.15.       DW3 (brother of accused) has stated that complainant and

accused were in partnership. He has reaffirmed the factum of finance

from M/s.Interstate Finance and subsequent finance from M/s.Juneja

Finance company. He has stated that          truck was refinanced from

M/s.Juneja Finance Company for a sum of Rs.2,25,000/- and he stood

as guarantor. It is stated that for securing loan he submitted his property15/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


document with M/s.Juneja Finance company but M/s.Juneja Finance

Company became dishonest and failed to release his property

documents. It is stated that M/s.Juneja Finance Company took the truck

into its custody against outstanding dues and sold it at heavy price. It is

submitted that M/s.Juneja Finance Company has failed to give any

account and has misutilized the cheques issued to M/s.Junjeja Finance

Company in collusion with complainant. He stated that a legal notice

dated 01.10.2007 has been also issued to M/s.Juneja Finance for

recovery of property document.15a.      In cross examination DW3 has denied any knowledge

regarding dissolution of partnership. He has admitted that legal notice

DW3/A dated 01.10.2007 has been served only upon M/s.Juneja

Finance company       and not on complainant. He has denied any

knowledge about settlement at Rs.1,50,000/- at the time of dissolution

of partnership and issuance of three cheques in dispute. He has stated

that he cannot read his affidavit exh.D-3 and same is drafted by his

counsel. He has also stated that he has not filed any case against

M/s.Juneja Finance Company and complainant for recovery of property

documents.16/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand16.        DW4 Sh. Harvinder Juneja (partner of M/s.Juneja Finance)

is summoned witness. He has stated that there are 8 or 9 partners in

M/s.Juneja Finance Company beside him. He has admitted that truck

bearing registration no.HR 55-5805 was refinanced           by M/s.Juneja

Finance Company for a sum of Rs.2,25,000/-. He has filed copy of

cheques issued by their company to the accused for advancing loan at

the time of finance (Mark X). Document Mark X shows following

cheques:Date of cheque     Particulars          Amount

a.         08.07.2003         Ch. No.711524        Rs.1,00,000/-
b.         10.07.2003         Ch. No.711525        Rs.60,000/-
c.         09.07.2003         Ch. No.711519        Rs.65,000/-It is stated that aforesaid three cheques were given at the

time of finance. It is stated that finance facility of Rs.2,25,000/- was

given in July 2003 and said amount was disbursed by cheques Mark X.

He has admitted that one of the cheque bearing no.711524 is in name

of " Interstate Finance" . He has stated that no PDC (post dated cheque)

was taken from Sansar Chand at time of finance. This witness was not

cross examined despite opportunity being given.17/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


FINDINGS:i.         The complaint case at all relevant point of time being tried as

summons trial, deserves a judgment to be pronounced underSection-355of the Code of Criminal Procedure, 1973.



ii.        Before proceeding further, it would be appropriate to quote

the Hon'ble Supreme Court inRangappa vs. S. Mohanarising out of

SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010:" Ordinarily in cheque bouncing cases, what the
           courts have to consider is whether the ingredients of
           the offence enumerated inSection 138of the Act
           have been met and if so, whether the accused was
           able to rebut the statutory presumption contemplated
           bySection 139of the Act."It is pertinent to note however that the accused is only

required to raise a preponderance of probabilities.iii.       Facts admitted :Factum of agreement to pay Rs. 1.5 lakh is admitted by both

parties.a.         There   was    oral   partnership   between       accused         and18/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


complainant.b.          The said partnership was dissolved. Accused agreed to pay

Rs.1,50,000/- to complainant. Declaration exh.CW1/1 is admitted by

both parties.c.          Receipt of legal notice dated 16.03.2005 is admitted.

d.          Factum of non payment of cheque amount despite receipt of

aforesaid notice is admitted.e.          It is admitted by accused that three cheques in question were

issued to M/s.Juneja Finance Company after return from M/s.Interstate

Finance. It is admitted by accused that apart from aforesaid cheques

some other cheques were also issued to M/s.Juneja Finance Company

Company aggregating to 24 in number including the cheques in

question.f.          It is admitted by accused that three cheques in question

belong to him, are issued by his bankers and bears his signatures.

g.          Factum of outstanding amount due towards M/s.Juneja

Finance Company is admitted by accused.iv.         Defence of Accused : Accused has denied his liability on

following grounds:19/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand


a.        Accused has denied issuance of three cheques in question to

complainant in terms of compromise/settlement dated 20.09.2003.

b.        It is stated that the complainant got three signed blank

cheques from M/s.Juneja Finance Company as award because

complainant helped M/s.Juneja Finance Company in lifting the truck

from M/s.Lucky Automobile in Himachal Pradesh.

c.        There is prior outstanding liability of Rs.1,34,784/- payable by

complainant towards partnership losses and accused is liable to pay

only Rs.15,216/-.v.        The three cheques dated 07.03.2005 being presented on

10.03.2005 well within six months of issuance are within limitation.Cheque returning memos exh.CW1/6, CW1/7 and CW1/8 and

dishonour of cheques for 'insufficient funds' be treated as proved

u/s-146NI Act. Accused has done nothing to rebut the mandatory

presumption of law arising in favour of complainant in this respect.



vi.       Complainant has primarily relied upon the mandatory

presumption of law in respect of legal liability. The issuance of cheque

being admitted, signatures admitted and dishonored being proved20/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


presumptionu/s 118and139of the Negotiable Instruments Act has to

arise. It must be presumed that the liablity as alleged was existing at the

time when cheque was given.vii.         Once the signatures of cheque is admitted, holder or payee

as the case may be will have a prima facie authority to complete the

cheque(Sec. 20NI Act)



viii.In view ofSection 118and139of the Negotiable Instruments

Act and recent judgment of Hon'ble Supreme Court inRangappa Vs.

Mohan(supra), there is no burden on complainant to establish legal

liability.ix.          I am afraid that on perusal of evidence all three defences of

accused fell on mat. DW4 in his testimony has categorically stated that

" I had not taken any PDC (post dated cheques) from Sansar Chand at

the time of finance' therefore, issuance of three disputed cheques by

accused to M/s.Juneja Finance Company and subsequently by

M/s.Juneja Finance Company to complainant does not arise.21/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


x.         Testimony of DW2 at the most show that vehicle in question

was    lifted   by   M/s.Juneja   Finance   Company      from       M/s.Lucky

Automobiles. However, testimony of this witness cannot be relied as he

has failed to establish his identity. Moreover document/bills brought by

this witness are secondary evidence. Apart from this, witness has not

signed these bills and has remained silent about there making in his

presence. Moreover the fact that witness has brought these documents

without knowledge of owner also does not inspire confidence in his

testimony.xi.        Court cannot loose sight of the fact that the question involved

in present case is whether three cheques in question have been issued

by accused to complainant in discharge of his liability or not. Once we

have reached a finding that cheques were not issued to M/s.Juneja

Finance Company by accused, the question whether these cheques

have been procured by complainant (as an award) from M/s.Juneja

finance Company for helping in lifting of vehicle          from M/s.Lucky

automobile becomes insignificant.xii.       So far as adjustment of Rs.1,34,784/- towards partnership22/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand


liability of complainant is concerned, accused has failed to lead any

evidence to show that the has incurred expenditure of Rs.98,918/- and

initial investment of Rs.1,73,150/-. However, in the cross examination,

the accused has admitted that he has not demanded the amount of Rs.

1,34,784/- from complainant till date in writing. It is also very strange

that once a full and final settlement was arrived by way of written

declaration Exh.CW1/1, why the accused did not incorporate factum of

outstanding amount of Rs.1,34,784/- in declaration. Court cannot lose

sight of the fact that the accused has never issued any notice or

initiated any proceedings to recover said amount prior to the dishonour

of cheques in dispute. However, this amount must be very much in

knowledge of accused since the time of purchase of truck and incurring

of damage due to accident in January, 2003.xiii.     Exh.CW1/1 affidavit/declaration which is admitted by both

parties clearly shows that accused agreed to pay Rs.1,50,000/- to

complainant and In view of settled law that in the absence of any other

cogent evidence the best evidence should prevail, this document can

be safely relied for just decision of the case.23/34CC No.413/A/2010
                                                        Kashmir Singh Vs Sansar Chand


xiv.      It is contended on behalf of the accused that no written notice

of the dissolution of the partnership was given by the complainant and

relying upon Clause 7 of the admitted affidavit/declaration exh.CW1/1, it

is clear that the partnership is still subsisting and the same was never

dissolved. It is stated that as the oral partnership is admitted so as perSection 43of Partnership Act which provides that :(1) Where the partnership is at will, the firm may be
          dissolved by any partner giving notice, in writing, to
          all other partners of his intention to dissolve the firm.
          (2) The firm is dissolved as per the date mentioned
          in the notice as the date of dissolution and if no date
          is mentioned from the date of communication of
          notice;written notice is mandatory to dissolve the partnership.


          It is contended by defence counsel that as no written notice

was given by the complainant so it can be inferred that the partnership

is subsisting and when the partnership is subsisting, question of arising

of liability of accused does not arise.Complainant has admitted the settlement of account in his

cross examination by way of the admitted affidavit/declaration dated24/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


20.09.2003 exh.CW1/1. In the cross examination of the complainant,

he admitted that understanding regarding partnership continued upto

20.10.2003 and on the same day account was finally settled with

accused Sansar Chand and further denied the suggestion                       that

because of his conduct the oral partnership could not be continued.Para-3 and 4 of the said affidavit/declaration exh.CW1/1 are

reproduced as under:Para-3: That now Sh. Kashmir Singh want to
            withdraw from partnership of the above said
            vehicle and I had taken over the said vehicle
            with me.Para-4 : That the sum of Rs.1,50,000/-(Rupees
            One lac fifty thousand only) is outstanding of
            Shri   Kashmir    Singh      regarding   share     of
            partnership in the said vehicle which shall be
            paid by me to Kashmir Singh on or before
            20.11.2003.It cannot be disputed that the declaration/affidavit is not

signed by the complainant rather it is a unilateral document wherein

the accused has admittedly in paras-3 and 4 stated that Kashmir Singh

now wants to withdraw from the partnership of the above said vehicle

and I had taken over the said vehicle with him and that a sum of25/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


Rs1.50 lacs is outstanding against Sh.Kashmir Singh regarding share

of partnership in the said vehicle which shall be paid by me to Kashmir

Singh on or before 20.11.2004. From the above stated paras nos.3

and 4, it can be safely inferred that it was the accused who by way of

signing of this affidavit/declaration exh. CW1/1 has expressed his

intention to withdraw from the partnership and as such this

declaration/affidavit dated 20.09.2003 exh.CW1/1 can be considered to

be a deemed notice of dissolution. From perusal ofSection 43 (1)Partnership Act it is clear that in all cases it is not necessary for the

partner who is willing to withdraw to give a notice of his intention as the

word used inSection 43of Partnership Act is " any partner" . Rather

other partner who is however willing to continue the business but is not

satisfied with the working of the other partners can also give a notice of

dissolution. The same has happened in the present case. This finding

is further fortified from the cross examination of the accused wherein

he has admitted the factum of dissolution of partnership vide

exh.CW1/1. So there should not be any doubt that by document

exh.CW1/1 partnership       was dissolved      and accused          took      the

possession of the truck and withdrew from the partnership.26/34CC No.413/A/2010
                                                     Kashmir Singh Vs Sansar Chand


          Para-7 of the Exh.CW1/1 has also been emphasized by

defence in order to show that partnership is still continuing. Para-7

reads as under:" That I hereby also assure to Sh. Kashmir Singh
            that I had paid the said partnership share amount
            to him on or before 20.11.2003 and if I fail to pay
            the said amount within the prescribed period then I
            again entered Sh. Kashmir Singh as a partner in
            the above said vehicle without any hitch or delay."It is pertinent to mention here that the admitted oral

partnership comprised of only two partners. Once either of the partners

withdraws from the partnership i.e. as the accused has done by

manifesting his intention of dissolution and thus dissolving the

partnership in the form of aforesaid affidavit/ declaration which is duly

signed by him, partnership ceases to exist and the same is reduced to

a proprietorship concern. The same has happened in this case and the

partnership stood dissolved the moment the accused signed the

declaration/affidavit. So far as Clause 7 is concerned, which is being

understood as continuing the partnership, the same is not permissible

under the law. It is settled proposition of the law that one cannot27/34CC No.413/A/2010
                                                         Kashmir Singh Vs Sansar Chand


approbate and reprobate at the same time. So, the accused cannot be

allowed to blow hot and cold at the same time. Further, it is the case of

the accused that the complainant wanted to withdraw from the

partnership. Then how by just inserting the clause 7 can the accused

compel the complainant to become the partner again without his

consent or willingness. Clause 7 is a provision which gives advantage

to the accused of his own wrong. From Clause 7 it is inferred that the

accused tried to compel the complainant to become the victim of his

own wrong doings i.e. by not making the payment in the prescribed

time. The accused unilaterally agreed to consider the complainant as a

partner, who as per the accused's case was not at all willing to continue

with the partnership and had started acting in different manner. So this

clause is against the spirit of partnership agreement as provided under

section 4 of The Partnership Act and Indian Contract Act being coercive

one.   In    view   of   the   aforesaid    discussion   and      reading        the

declaration/affidavit exh.CW1/1 as a whole, it can be safely said that

the partnership was dissolved on 20.10.2003 and the Clause 7 being

coercive one is opposed to the law and public policy so the same

cannot be relied upon and sustained.The judgments relied by the accused regarding this point do28/34CC No.413/A/2010
                                                         Kashmir Singh Vs Sansar Chand


not apply to the present case as the facts of the present case are

peculiar one as explained above.xv.       Further, during the cross examination of the witness DW4

Sh.Harvinder   Singh,   Director   of      M/s.Juneja   Finance        Company

summoned on behalf of the accused, document Mark Z legal notice

dated 28.07.2008 sent on behalf of the accused to M/s.Juneja Finance

Company was relied upon by the accused. The same being a

photocopy is not admissible as per law and it is again made clear that

the present finding is not based on this document Mark Z but as the

accused has relied upon it, its contents can be used to test the

probability of his defence. Para nos.6 and 7 read as under:Para 6 : That my client believed on your words
            and completed all the formalities of the loan
            with the understanding that he would repay the
            loan amount in 24 equated installments of Rs.12,375/-    and   provided      the   14    available
            cheques bearing nos.347267 to 347280 with
            him in advance towards the said agreed
            installment of Rs.12,375/- and subsequently
            on next day after procuring the new cheque
            from his bankers containing 20 cheques29/34CC No.413/A/2010
                                        Kashmir Singh Vs Sansar Chand


bearing nos.369481 to 369500 my client
approached to you for to provide the remaining
10 cheque on account of repayment of loan
amount in the installments. You obtained the
cheque book containing 20 cheques of my
client with his signatures and assured that the
earlier issued 14 cheques of my client would
be returned to him after repayment of the loan,
for which my client could not resist and asked
for to release the loan amount.Para-7 : That you after due formalities paid the
amount of Rs.1,19,000/- to M/s.Interstate
Finance Ltd. for to clear the outstanding dues
of the loan of my client and gave a cheque of
Rs.45,000/- to my client and failed to pay the
remaining amount to my client and my client
could not resist and ask for to release the
remaining amount of loan with the fear that he
had given the blank cheques to you with the
title documents of his brother's property and
was apprehending that by raising my question
by him you may misutilize the same for
unlawful gain from my client.30/34CC No.413/A/2010
                                                  Kashmir Singh Vs Sansar Chand


         It means that a total of 34 cheques bearing nos.347267 to

347280 and nos.369481 to 369500 were issued by the accused to

M/s.Juneja Finance Company however as per para-2 of accused's

affidavit exh.DW1/A a total of 24 cheques including the cheque in

question were issued to M/s.Juneja Finance Company. Further the

cheques in para-6 do not pertain to the series of cheques in dispute.

The same creates a serious doubt about the factum of handing over the

disputed cheques to M/s.Juneja Finance Company which is confirmed

by the examination of the summoned witness DW4/Juneja Finance

company who has categorically denied the handing over of any post

dated cheques at the time of finance and hence, brought the defence of

the accused to a nought.In para-7 as reproduced herein before, the accused has

come up with a new story regarding the amount re-financed from

M/s.Juneja Finance Company. The same is in direct contradiction with

the contents on page-2 of Exh.DW2/A and para A of Exh. CW1/14

relied upon by the accused which reads as " the said truck was got

refinanced from M/s.Juneja Finance Company for Rs.2,25,000/-"wherein the factum of Rs.2.25 lacs being financed by Juneja Finance31/34CC No.413/A/2010
                                                   Kashmir Singh Vs Sansar Chand


company to the accused is admitted. The story of para-7 is in further

contradiction with documents Mark X (copy of cheques given by

M/s.Juneja Finance Company to accused towards finance of Rs.

2,25,000/-) which were produced by the defence witness DW4

however, being photocopies they are not admissible but may be used in

drawing a inference as to the truthfulness of the story of the accused.

From this document Mark X, it is clear that the accused has received a

total finance amount of Rs.2.25 lacs which is denied by the accused in

para-7 of the aforesaid notice.xvi.      Moreover from the statement of account       of accused exh.

DW1/B(OSR), it is no where clear as to whether the cheques

mentioned in the same were credited in the account of M/s.Juneja

Finance Company. Last, but not the least, the factum of issuance of

cheques to M/s.Juneja Finance Company is vague and the same is

contradicted by testimony of DW4 who categorically stated that no

PDCs were handed over at the time of finance.



xvii.     It is contended by the defence that the complainant in his

cross examination has contradicted his documentary evidence and also32/34CC No.413/A/2010
                                                    Kashmir Singh Vs Sansar Chand


could not explain the reasons for issuance of these cheques of same

denominations of even date to the same person by accused.This court is of the view that aforesaid contradictions do not

go to the root of the case and so are not material one. Issuance of

cheques in aforesaid manner is also not exceptional and it is for the

accused to explain the said issuance;xviii.    It is settled law that offence of dishonored of cheques is a

technical offence initiating a reverse onus clause. It is not the

complainant who has to establish liability but the accused who has to

rebut the same.xix.      From above said discussion, I am of the view that the

accused has failed to rebut the mandatory presumption of law arising in

favour of complainant.xx.       In the present facts and circumstances, it is clear that the

accused was liable to pay Rs.1,50,000/- to the complainant and towards

discharge of liability, three cheques in question were issued. Since,33/34CC No.413/A/2010
                                                      Kashmir Singh Vs Sansar Chand


accused was failed to pay the cheque amount despite receipt of

demand notice and could not rebut the mandatory presumption of

liability against him, he has committed offence underSection 138of the

Negotiable Instruments Act.xxi.      I accordingly return a finding of guilt against the accused.



xxii.     The accused is hereby convicted for offence as punishable

u/s.138 ofNI Act, 1881.xxiii.    Let the convict be heard on the point of sentence.Announced in the open court                          Viplav Dabas
today i.e. 24.01.2011                               MM(North)/Delhi
                                                      24.01.201134/34