Delhi District Court
Sat Bhagwan Gautam vs Punit Jain on 6 June, 2025
DLSE010125372024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 411/2024
SAT BHAGWAN GAUTAM @ SATYA BHAGWAN
S/o Sh. Virendra Kumar Gautam
R/o B-46, Double Storey, Idgah Road,
Ahata, Kidara, Delhi-110006.
....Appellant
versus
PUNIT JAIN
S/O Sh. R.K. Jain
R/o Plot No. 93, Jeevan Nagar,
Wazir Pur Road, Old Faridabad,
Haryana -121002.
...Respondent
Date of institution : 19.12.2024
Date of Reserving judgment : 06.06.2025
Date of Pronouncement : 09.06.2025
Crl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 1/21
JUDGMENT
1. This is an appeal preferred by the appellant against the impugned
judgment dated 28.06.2024 and order on sentence dated 10.07.2024 passed
by Court of Ld. Metropolitan Magistrate (NI Act-05), South East District
in Ct Case No. 625059/2016 titled Punit Jain Vs. Sat Bhagwan Gautam,
whereby the appellant Sat Bhagwan Gautam was convicted of the offence
punishable under Section 138 of Negotiable Instruments Act and was
sentenced to pay fine of Rs. 4,00,000/- as compensation within 60 days
from the date of order. In default of payment of said fine, appellant has to
undergo simple imprisonment for a period of six months. The said
complaint was filed by the respondent herein against the appellant herein.
For the sake of convenience, the appellant herein shall be referred to as
‘accused’ and the respondent herein shall be referred to as ‘complainant’.
BRIEF FACTS
2. The brief facts of the case are correctly noted by the Ld. Trial
Court in the following fashion:
“2. The case of the complainant is that he is sole proprietor of
M/s. Vedic Medicare and running business of production of
Ayurvedic products. That the accused has been known to the
complainant for the last 2 years. That having cordial friendly
business relationship and trust worthiness with the
complainant, the accused availed a friendly loan of Rs. 2 Lakhs
from the complainant in the year 2009 to recover from the loss
in his business with his partner Mr. Mukesh. That the accused
assured to repay the said amount in the month of December
2009. That to discharge his liability the accused issued cheque
bearing no. 508136 dated 23.03.2010 for an amount of Rs.
Crl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 2/21
2,00,000/- (Rupees Two Lakhs Only) drawn on Bank of
Baroda, Sadar Bazaar, Delhi and upon presentation of the said
cheque, the same was returned unpaid with the remarks
“Payment stopped by the drawer” vide Return Memo dated
27.04.2010. That thereafter, complainant sent a legal notice of
demand dated 03.05.2010 to the accused u/s 138 of NI Act
calling upon the accused to make the payment within 15 days
of the receipt of the legal notice as prescribed u/s 138 of the
N.I. Act. That the legal notice of demand was duly served upon
the accused and even after the expiry of 15 days stipulated
period, the accused did not make the payment, hence, the
present case was filed by the complainant.”
TRIAL
3. Vide order dated 15.03.2011, the Ld. Magistrate concerned
summoned the accused to face trial u/s 138 NI Act. On 07.04.2011, a
notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded
not guilty and claimed trial. In defence, he submitted that:-
“I was an employee of complainant in past. I have not taken
any loan from the complainant. Few of my cheques from my
cheque book got misplaced and I have also lodged an FIR
with regard to same. I do not know how these cheques have
reached to complainant. The complainant has misused one of
my misplaced cheque s and filed this false case.”
4. During trial, the complainant examined himself as CW-1 and
deposed in line with the case set up against the accused. Statement of
accused was recorded u/s 313 Cr.P.C, wherein he denied all the evidence
put to him by the Ld. Magistrate. No evidence was led in defence by the
Crl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 3/21
accused. Upon the conclusion of trial, accused was convicted for the
commission of offence punishable u/s 138 NI Act vide the impugned
judgment dated 28.06.2024.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement
are as under :
A. Because the impugned order is bad under the law and on
the facts of the case.
B. Because the impugned order suffers from surmises and
conjectures and is not sustainable.
C. Because the Trial Court has drawn conclusions
unwarranted on the facts and circumstances and misconstrued
the evidence.
D. Because the Trial Court did not consider the case in its
right perspective and totally negated the significance of
the vital facts missing in the complaints itself without any
plausible explanation. The complainant also failed to disclose
any cogent reason for concealing vital facts.
E. Because the Trial Court did not consider the significance
of the fact that the complainant failed to explain as to why and
when the cheques were presented.
F. Because the Trial Court completely lost sight of the fact
that the complainant has not been able to prove its case as
untested evidence of the complainant cannot be read in
evidence.
G. Because the Trial Court completely overlooked the
significance of having not cross-examining of the complainant
where the complainant was the person who chose to run away
from his cross examination which also shows the wrong
intentions of the complainant.
H. Because the Trial Court did not appreciate the
Crl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 4/21
significance of the fact that the complainant in his cross
examination produces copies of invoices which were marked
as Mark A,B,C and D respectively and copy of ITR for AY
2010-2011 as Mark E. Complainant deposed that he had
indicated loan extended to accused in his ITR, though, upon
inspection he failed to point to any such entry. The
complainant failed to explain his position before this Hon’ble
and chose to adjourn the matter, this reflects the evasion and
evil mind.
I. Because the Trial Court has failed to appreciate the fact
in favor of the accused that during the cross examination of the
complainant, it was the complainant who chosen to adjourn the
matter at request and never appeared before the Hon’ble Trial
Court to get himself cross examined.
Due the said act of the Complainant the same Trial Court had
pleased to close the CE of the complainant on 03.02.2023 and
the case was got put up for statement of accused.
J. Because the Trial Court did not provide the counsel for
the Accused/Appellant another opportunity to address
arguments as on 10.07.2024, when the order on sentence was
pronounced, the counsel had requested for further time to
prepare for arguments.
K. Because the Trial Court also failed to appreciate that the
complainant is even not sure as to what time of the day he
gave the loan, whether it was during day time or evening and
he pleaded ignorance to all the questions regarding turnover of
his firms in the year 2007-2009, whether ITRs for the said
period were audited or not and whether he is aware of Profit
and Loss Account and that how the same is maintained. There
is only one conclusion that the loan was never given and the
entire story is false and concocted.
L. Because the Trial Court failed to appreciate the
significance of the fact that the complainant also choose not to
explain the position, this reflects his evasion and evil mind.
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M. Because the Trial Court failed to appreciate when the
complainant say that the cheques given were post-dated, it is
absurd, unnatural and illogical.
N. Because the trial court failed to appreciate in favor of the
accused that the whole case of the complainant is based on the
untested testimony of the complainant and unproved
documents which are marked only. (need to complete this
para).
O. Because the Trial Court misconstrued and misinterpreted
the cross examination of the accused saying that he said
accused works on commission basis. The trail Court misread
the cross and took to another meaning which never existed.
P. Because the Trial Court also erred in believing that there
is no suggestion from the accused side that no loan was given.
It is very much there in the cross examination of the
complainant.
Q. Because the trail Court failed to appreciate that the
presumptions under section 118(a) and 139 are rebuttable on a
preponderance of probabilities and in the present case the
accused has been able to discharge the initial burden and it
shifted onto the complainant to prove his case for which he
chooses to ran away from the witness box.
R. Because the Trial Court failed to appreciate that the
presumptions are rules of evidence and do not conflict with
presumption on innocence, and the prosecution is obliged to
prove his case beyond reasonable doubts. There are many
holes and inconsistencies in the complainant story that proves
it to be false and improbable and unnatural.
S. Because the Trial Court has wrongly convicted and
sentence the accused. The Trial Court even was oblivion of
provisions of section 65 IPC. The Trial Court has completely
erred in appreciating the facts and circumstances of the case.
6. It is prayed that the impugned judgment dated 28.06.2024 and the
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order on sentence dated 10.07.2024 may be set aside.
SUBMISSIONS OF COMPLAINANT
7. On the other hand, Ld. Counsel for the complainant has argued that
the accused has been correctly convicted by Ld. Metropolitan Magistrate
and an appropriate sentence has been imposed upon him. He prays for
dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the
records.
9. Recently, the Hon’ble Supreme Court was pleased to define the
contours of the law relating to the provision u/s 138 of Negotiable
Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The
relevant extracts of the observations are reproduced below for ready
reference:-
Section 138 of the NI Act – Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque,
the courts are called upon to consider is whether the
ingredients of the offence enumerated in Section 138 of the
Act have been met and if so, whether the accused was able
to rebut the statutory presumption contemplated by Section
139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel
(2022) 11 SCC 705 , this Court has unpacked the
ingredients forming the basis of the offence under Section
138 of the NI Act in the following structure:
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(1) The drawing of a cheque by person on do
account maintained by him with the banker for the
payment of any amount of money to another from
that account;
(i) The cheque being drawn for the discharge in
whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank
arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank
as unpaid either because the amount of money
standing to the credit of that account is insufficient
to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due
course making a demand for the payment of the
amount to the drawer of the cheque within 30 days
of the receipt of information from the bank in
regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make
payment of the amount of money to the payee or
the holder in due course within 15 days of the
receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7
SCC 510 this Court had summarised the constituent
elements of the offence in fairly similar terms by holding:
“14. The offence Under Section 138 of the Act can
be completed only with the concatenation of a
number of acts.The following are the acts which
are components of the said offence: (1) drawing ofCrl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 8/21
the cheque, (2) presentation of the cheque to the
bank, (3) returning the cheque unpaid by the
drawee bank, (4) giving notice in writing to the
drawer of the cheque demanding payment of the
cheque amount, (3) failure of the drawer to make
payment within 15 days of the receipt of the
notice.”
28. The five (5) acts as set out in K Bhaskaran‘s case
(supra) are, generally speaking, matters of record and
would be available in the form of documentary evidence as
early as, at the stage of filing the complaint and initiating
prosecution. Apart from the above acts, it is also to be
proved that cheque was issued in discharge of a debt or
liability (Ingredient no. (ii) in Gimpex‘s case). The burden
of proving this fact, like the other facts, would have
ordinarily fallen upon the complainant. However, through
the introduction of a presumptive device in Section 139 of
the NI Act, the Parliament has sought to overcome the
general norm as stated in Section 102 of the Evidence Act
and has, thereby fixed the onus of proving the same on the
accused. Section 139, in that sense, is an example of a
reverse onus clause and requires the accused to prove the
non-existence of the presumed fact, i.e., that cheque was
not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual
Underpinnings
29. There are two senses in which the phrase ‘burden
of proof’ is used in the Indian Evidence Act, 1872
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(Evidence Act, hereinafter). One is the burden of proof
arising as a matter of pleading and the other is the one
which deals with the question as to who has first to prove a
particular fact. The former is called the ‘legal burden’ and it
never shifts, the latter is called the ‘evidential burden’ and it
shifts from one side to the other. [See Kundanlal v.
Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains
constant throughout a trial. It is the burden of establishing
the facts and contentions which will support a party’s case.
If, at the conclusion of the trial a party has failed to
establish these to the appropriate standards, he would lose
to stand. The incidence of the burden is usually clear from
the pleadings and usually, it is incumbent on the plaintiff or
complainant to prove what he pleaded or contends. On the
other hand, the evidential burden may shift from one party
to another as the trial progresses according to the balance of
evidence given at any particular stage; the burden rests
upon the party who would fail if no evidence at all, or no
further evidence, as the case may be is adduced by either
side (See Halsbury’s Laws of England, 4th Edition para 13).
While the former, the legal burden arising on the pleadings
is mentioned in Section 101 of the Evidence Act, the latter,
the evidential burden, is referred to in Section 102 thereof.
[G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in
Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means “taking
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as true without examination or proof”. In Kumar Exports v.
Sharma Exports (2009) 2 SCC 513, this Court referred to
presumption as “devices by use of which courts are enabled
and entitled to pronounce on an issue notwithstanding that
there is no evidence or insufficient evidence.”
32. Broadly speaking, presumptions are of two kinds,
presumptions of fact and of law. Presumptions of fact are
inferences logically drawn from one fact as to the existence
of other facts. Presumptions of fact are rebuttable by
evidence to the contrary. Presumptions of law may be either
irrebuttable (conclusive presumptions), so that no evidence
to the contrary may be given or rebuttable. A rebuttable
presumption of law is a legal rule to be applied by the Court
in the absence of conflicting evidence (Halsbury, 4th
Edition paras 111, 112]. Among the class of rebuttable
presumptions, a further distinction can be made between
discretionary presumptions (‘may presume’) and
compulsive or compulsory presumptions (‘shall presume’).
[G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit
within one of three forms: ‘may presume’ (rebuttable
presumptions of fact), ‘shall presume’ (rebuttable
presumption of law) and conclusive presumptions
(irrebuttable presumption of law). The distinction between
‘may presume’ and ‘shall presume’ clauses is that, as regards
the former, the Court has an option to raise the presumption
or not, but in the latter case, the Court must necessarily
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raise the presumption. If in a case the Court has an option to
raise the presumption and raises the presumption, the
distinction between the two categories of presumptions
ceases and the fact is presumed, unless and until it is
disproved, [G.Vasu V. Syed Yaseen (Supra)]
Section 139 NI Act-Effect of Presumption and Shifting of
Onus of Proof
34. The NI Act provides for two presumptions: Section 118
and Section 139. Section 118 of the Act inter alia directs
that it shall be presumed, until the contrary is proved, that
every negotiable instrument was made or drawn for
consideration. Section 139 of the Act stipulates that ‘unless
the contrary is proved, it shall be presumed, that the holder
of the cheque received the cheque, for the discharge of,
whole or part of any debt or liability’. It will be seen that the
‘presumed fact’ directly relates to one of the crucial
ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a
‘shall presume’ clause is illustrative of a presumption of
law. Because Section 139 requires that the Court ‘shall
presume’ the fact stated therein, it is obligatory on the Court
to raise this presumption in every case where the factual
basis for the raising of the presumption had been
established. But this does not preclude the person against
whom the presumption is drawn from rebutting it and
proving the contrary as is clear from the use of the phrase
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‘unless the contrary is proved’.
36. The Court will necessarily presume that the
cheque had been issued towards discharge of a legally
enforceable debt/liability in two circumstances. Firstly,
when the drawer of the cheque admits issuance/execution
of the cheque and secondly, in the event where the
complainant proves that cheque was issued/executed in his
favour by the drawer. The circumstances set out above form
the fact(s) which bring about the activation of the
presumptive clause. [Bharat Barrel Vs. Amin Chand]
[(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding
that presumption takes effect even in a situation where the
accused contends that ‘a blank cheque leaf was voluntarily
signed and handed over by him to the complainant. [Bir
Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore,
mere admission of the drawer’s signature, without admitting
the execution of the entire contents in the cheque, is now
sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to
prove that the instrument, say a cheque, was issued by the
accused for discharge of debt, the presumptive device under
Section 139 of the Act helps shifting the burden on the
accused. The effect of the presumption, in that sense, is to
transfer the evidential burden on the accused of proving that
the cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden is
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discharged by the accused, the presumed fact will have to
be taken to be true, without expecting the complainant to do
anything further.
39. John Henry Wigmore12 on Evidence states as follows:
“The peculiar effect of the presumption of law is merely to
invoke a rule of law compelling the Jury to reach the
conclusion in the absence of evidence to the contrary from
the opponent but if the opponent does offer evidence to the
contrary (sufficient to satisfy the Judge’s requirement of
some evidence), the presumption ‘disappears as a rule of
law and the case is in the Jury’s hands free from any rule.”
40. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in situations
where the prosecution is required to prove the guilt of an
accused. The accused is not expected to prove the non-
existence of the presumed fact beyond reasonable doubt.
The accused must meet the standard of ‘preponderance of
probabilities’, similar to a defendant in a civil proceeding.
[Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable
defence wherein the existence of a legally enforceable debt
or liability can be contested. The words ‘until the contrary
is proved’ occurring in Section 139 do not mean that
accused must necessarily prove the negative that the
instrument is not issued in discharge of any debt/liability
but the accused has the option to ask the Court to consider
the non-existence of debt/liability so probable that a
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prudent man ought, under the circumstances of the case, to
act upon the supposition that debt/liability did not exist.
[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See
also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC
513]25
42. In other words, the accused is left with two options. The
first option-of proving that the debt/liability does not exist-
is to lead defence evidence and conclusively establish with
certainty that the cheque was not issued in discharge of a
debt/liability. The second option is to prove the non-
existence of debt/liability by a preponderance of
probabilities by referring to the particular circumstances of
the case. The preponderance of probability in favour of the
accused’s case may be even fifty one to forty nine and
arising out of the entire circumstances of the case, which
includes: the complainant’s version in the original
complaint, the case in the legal/demand notice,
complainant’s case at the trial, as also the plea of the
accused in the reply notice, his 313 statement or at the trial
as to the circumstances under which the promissory
note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that
there was ‘no debt/liability’. [Kumar Exports and Sharma
Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the
evidential burden need not necessarily be direct evidence
i.e., oral or documentary evidence or admissions made by
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the opposite party; it may comprise circumstantial evidence
or presumption of law or fact.
44. The accused may adduce direct evidence to prove that
the instrument was not issued in discharge of a debt/liability
and, if he adduces acceptable evidence, the burden again
shifts to the complainant. At the same time, the accused
may also rely upon circumstantial evidence and, if the
circumstances so relied upon are compelling the burden
may likewise shift to the complainant. It is open for him to
also rely upon presumptions of fact, for instance those
mentioned in Section 114 and other sections of the
Evidence Act. The burden of proof may shift by
presumptions of law or fact. In Kundanlal’s case- (supra)
when the creditor had failed to produce his account books,
this Court raised a presumption of fact under Section 114,
that the evidence, if produced would have shown the non-
existence of consideration. Though, in that case, this Court
was dealing with the presumptive clause in Section 118 NI
Act, since the nature of the presumptive clauses in Section
118 and 139 is the same, the analogy can be extended and
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability
in the manner pleaded in the complaint or the demand
notice or the affidavit-evidence, the burden shifts to the
complainant and the presumption ‘disappears’ and does not
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haunt the accused any longer. The onus having now shifted
to the complainant, he will be obliged to prove the
existence of a debt/liability as a matter of fact and his
failure to prove would result in dismissal of his complaint
case. Thereafter, the presumption under Section 139 does
not again come to the complainant’s rescue. Once both
parties have adduced evidence, the Court has to consider
the same and the burden of proof loses all its importance.
[Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See
also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
EXISTENCE OF STATUTORY PRESUMPTIONS
10. As per complainant, the cheque in question was issued by the
accused in his favour in order to discharge his (accused’s) liability towards
repayment of friendly loan @ Rs. 2,00,000/- availed from the complainant
in the year 2009.
11. On the other hand, the accused denies any such liability and claims
as under, in response to notice framed upon him u/s 251 Cr.P.C:-
“I was an employee of complainant in past. I have not
taken any loan from the complainant. Few of my cheques
from my cheque book got misplaced and I have also
lodged an FIR with regard to same. I do not know how
these cheques have reached to complainant. The
complainant has misused one of my misplaced cheques and
filed this false case.”
12. Apparently, accused does not dispute that the cheque in question
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belongs to him or bears his signatures. The accused disputes the claim of
the complainant that the cheque in question was handed over to him
(complainant). Accused claims that the cheque in question was misplaced
and the same was misused by the complainant to file this complaint. At the
stage of recording of statement u/s 313 CrPC, the accused reiterated that he
never handed over the cheque in question to the complainant. Rather, he
claimed that the complainant had stolen the cheque in question.
13. In such circumstances, this court is required to look into the
evidence in order to assess whether or not the cheque in question was
handed over to the complainant by the accused. But before delving into the
oral testimony of complainant, this Court must deal with one important
argument raised by the accused – that the cross examination of the
complainant could never conclude during the course of trial and as such his
oral testimony is to be discarded summarily. Ld. Counsel for the
complainant has vehemently argued that the Ld. Magistrate has correctly
ruled against the accused in respect of the above argument.
14. This Court has gone through the lengthy discussion made by the Ld.
Magistrate with respect to the above legal argument. It is apparent from the
impugned judgment dated 28.06.2024 that Ld. Magistrate has devoted a
great deal of her time while dealing with the above argument raised by the
accused. Paras 18 to 30 of the impugned judgement deal with the above
argument. Ld. Magistrate has referred to the observations made by Hon’ble
High Court of Patna in Anamika Pranav Vs. Anil Kumar Chaudhary dated
08.02.2023 in CM No. 538/2018 and has observed that the accused was
afforded adequate opportunity to cross-examine the complainant on two
different occasions but the accused did not follow any clear line of defence.
Ld. Magistrate was also pleased to hold that even if further cross-
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examination of complainant would also have taken place, the accused
could not have shaken nor impeached the credibility of complainant. As
such, Ld. Magistrate discarded the above argument of accused and chose to
rely upon the incomplete oral testimony of complainant to return a finding
of guilt against accused. The discussion made by Ld. Magistrate reflects
that a heavy reliance has been placed upon the observations made by
Hon’ble Supreme Court in V.M. Mathew Vs. V.S. Sharma & Ors. AIR
1996 SC 109. Having gone through the observations made by Hon’ble
Supreme Court in V.N. Mathew (Supra), this Court finds that the
observations made therein are in the context of Section 33 of Indian
Evidence Act (as it stood before being repealed by Bharatiya Sakshya
Adhiniyam 2023). A bare perusal of Section 33 of Indian Evidence Act
reflects that the same deals with ” Relevancy of certain evidence for
proving, in subsequent proceedings, the truth of facts therein stated “. The
said section lays down as to when the evidence of a witness in a previous
judicial proceeding is relevant. In the present case, nothing of this sort is
available. Even otherwise, the said provision deals with certain
contingencies which may arise in a case – e.g. a witness is dead or could
not be found or is incapable of giving evidence or is kept out of the way by
the adverse party or if his presence could not be obtained without an
amount of delay or expense which under the circumstances of the case the
Court considers unreasonable. In the present case, the complainant
examined himself as CW-1, he was cross-examined on two different
occasions – his cross examination was deferred for want of certain
documents, which he undertook to produce before the Ld. Magistrate. But
subsequently, complainant failed to join the proceedings pending in the
Court of Ld. Magistrate. As such, on 03.02.2023, Ld. Magistrate was
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pleased to close CE. In effect, the cross-examination of complainant
remained incomplete. It is not the case of the complainant that any of the
contingencies mentioned in Section 33 of Indian Evidence Act applied to
his case. In such circumstances, this Court could assume that the
complainant deliberately failed to appear before the Ld. Magistrate for
conclusion of his cross-examination. That being so, it would be safe to
observe here that the observations made in V.M. Mathew (Supra) do not
apply to the present facts and circumstances. Rather, the observations made
by a Division Bench of Hon’ble High Court of Delhi in State Vs. Abuzar
@ Rahil decided on 10.11.20222 Crl LP 97/2021 squarely apply to the
present case, wherein it has been observed that:-
4. It is well settled that if the witness does not subject itself for
complete cross-examination, the testimony of the said witness
cannot be considered as held by this Court in the decision
reported as 2000 (55) DRJ 707 (DB) Ripen Kumar Vs.
Department of Customs as under :
“…….. The procedure as laid down under the Evidence
Act is clear and unambiguous. Under the Evidence Act,
evidence means the examination-in-chief and cross-
examination. That statement alone will form evidence.
In the present case petitioner had been deprived to
cross-examined PW-1 thereby dislodge his testimony.
Hence incomplete statement of PW-1 in the absence of
cross-examination could not be treated as evidence nor
the same could be relied upon. Therefore the
observation of learned ASJ that incomplete statement
could have been the basis of deciding the question of
charge is contrary to law. Part statement of PW-1 did
not attain the status of evidence, nor on the basis of the
same it could be said that statement of the accused
recorded under section 108 of the Customs Act stoodCrl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 20/21
proved.
5. The finding of the learned Trial Court on this count that the
evidence of the prosecutrix cannot be considered in the absence
of complete cross- examination, cannot be faulted.
15. As such, the incomplete evidence of complainant could not have
been relied upon by the Ld. Magistrate at all. That being so, even this
Court could not delve into the incomplete oral testimony of complainant to
assess the merits of this case. Admittedly, complainant has not examined
any other witness in support of his allegations against the accused
regarding delivery of the cheque in question. In the absence of any
admission by accused in this regard, this Court could not hold that the
cheque in question was handed over to the complainant by the accused. In
the facts and circumstances, this Court is constrained to hold that the
statutory presumptions never came into existence in favour of the
complainant and against the accused. For the said reason, the accused Sat
Bhagwan Gautam @ Satya Bhagwan deserves to be acquitted of all
charges. Ordered accordingly.
16. As a consequence, the impugned judgment dated 28.06.2024 and
order on sentence dated 10.07.2024 are hereby set aside. With these
observations, the present appeal stands disposed of.
Digitally
17. TCR be sent back along with a copy of this judgment. signed by
LOVLEEN
LOVLEEN Date:
2025.06.11
12:50:40
+0530
Announced & Dictated in the
Open Court today i.e. 09.06.2025 (Lovleen)
ASJ-03 (South East)
Saket Courts, Delhi
Crl. Appeal No: 411/2024 Sat Bhagwan Gautam Vs Punit Jain 21/21