Himachal Pradesh High Court
Rajinder Singh Verma vs Haji B.K. Hanchnmani on 30 April, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 582 of 2017.
Reserved on: 3rd April, 2019.
.
Date of Decision: 30th April, 2019.
Rajinder Singh Verma .....Appellant.
Versus Haji B.K. Hanchnmani ....Respondent.
Coram r to The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Hardeep Verma, Advocate.
For the Respondent: Mr. Mukesh Sharma, Advocate. _______________________________________________________ Sureshwar Thakur, Judge.
The instant appeal, is, directed by the complainant/appellant herein, against, the verdict of acquittal pronounced by the learned trial court, upon, Cr.
Case No.2593-3 of 2014/05.
2. The facts relevant to decide the instant case are that in September, 2004, the accused offered to purchase apple from the complainant, who readily agreed as the accused was offering a good rate. The accused ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 2 assessed the gross, value of the apple crop at Rs.6,00,000/-, and, issued a post dated cheque No. 968127 of 1.10.2004, drawn on ICICI Bank, Shimla in .
favour of the complainant. The accused requested him to present this cheque for ecashment in December, 2004.
The complainant contacted the accused on telephone before presentation of the cheque. The accused assured that the cheque would be cleared on its presentation.
Accordingly, the complainant presented the cehque issued by the accused before the ICICI Bank, Shimla on 12.01.2015. The said bank informed the complainant that the cheque had been dishonoured due to "insufficient funds". The complainant immediately contacted the accused and intimated him about the dishonour of the cheque. The accused told the complainant that he would clear the payment very soon. However, he did not make the payment. The complainant sent a legal notice to the accused on 11.2.2005 by registered post, however, the accused failed to pay the cheque amount. Hence the complaint.
3. The learned trial Court, on, finding sufficient material on record, to proceed against the accused, hence, issued notice to the accused. On his appearance before ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 3 the learned trial Court, notice of accusation for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, stood put to him. In proof .
of the case, the complainant examined himself as a witnesses. On conclusion of recording of the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein he claimed innocence and pleaded false implication.
4. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.
5. The learned counsel appearing for the complainant/appellant herein, has, concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-
appreciation by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction.
::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 46. On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, contended qua the findings .
of acquittal recorded by the learned trial court, rather standing based on a mature and balanced appreciation by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
7. The charge against the accused would be concluded hence to be cogently proven, upon, (a) cheque, borne in Ex.CW1/A being proven to be in the handwriting of the accused, (b) return memo, borne in Ex.CW1/B, containing recitals qua, upon, presentation of Ex.CW1/A, before the bank concerned, it being refused to be honoured also hence being proven, to, be issued, from, the bank concerned.
8. The factum probandum, of, Ex.CW1/A containing the signatures of the accused, is, apparently not cogently proven, (a) given, the complainant in his cross-examination rather feigning ignorance qua Ex.CW1/A containing the signatures of the accused or not, therefrom, an inference is bolstered, that, the complainant being unaware of the identity of the accused, (b) and, also qua Ex.CW1/A being issued by the accused or not, remaining ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 5 engulfed, in a shroud of doubt, more particularly, qua its issuance working towards discharge, of, any legally enforceable debt or other liability or the apposite .
therewith statutory presumption rather also becoming hence beclouded. (c) Further corollary thereof, is that Ex.CW1/A is to be concluded to be not issued by the accused, rather it is to be inferred to be issued by a person other than the accused, therefrom, a deduction is filliped qua the charge against the accused arising from EX.CW1/A, being on its presentation, before the bank concerned, being declined to be honoured, rather faltering.
9. Even if, assumingly, the complainant may, upon, recoursing to an appropriate remedy, cast under the provisions of Section 45 of the Indian Evidence Act, rather could therethrough strive to prove the afore cheque, borne in Ex.CW1/A, carrying the authentic signatures of the accused, (a) and, thereafter it, was permissible for the complainant, to rely upon the statutory provisions, cast under the provisions of Section 139 of the Negotiable Instruments Act, qua his holding it in discharge, of, a contractual or other legal liabilities, arising inter se him, and, the accused. Nonetheless, dehors, the afore curative recoursings, for, hence, dispelling, the, effect, of ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 6 Ex.CW1/A, rather being feigned, in the testification rendered hence by the complainant, to, hence assuredly contain the signatures of the accused, also, the mandate, .
of, Section 146 of the Negotiable instrument Act, provisions whereof stand extracted hereinafter, was, also vis-a-vis, Ex.CW1/B, the purported return memo given Ex.CW1/A, hence enjoined, to be cogently satiated.
"146. Bank' slip prima facie evidence of certain facts- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disporved.
Even though, the court is statutorily empowered, to, qua the apposite return memo hence enunciating, the, declining to honour the negotiable instrument concerned, rather avail the apposite therewith presumption, as, engrafted therein, (a) yet the afore presumption would be aptly galvanized, upon, the memo evidently carrying thereon, the official mark, and, seal, of the bank concerned. However, the afore presumption, as occurring therein, and, with a statutory coinage, "unless and until ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 7 such fact is disproved", is, rebuttable, only upon, adduction into evidence, the return memo, (b) whereupon hence, it would also stand proven qua it not carrying the .
official mark or seal of the bank concerned. The evidence in consonance, with, the afore statutory coinage, occurring, in, the last part of Section 146 of the N.I. Act, is, prima facie, rather upsurging, given, Ex.CW1/B evidently not carrying the seal or official mark, of, the bank concerned, (I) AND, with one Naresh Kumar, Accounts Officer from ICICI Bank, The Mall Shimla, upon, his stepping into the witness box, rather showing his inability to bring the original of Ex.CW1/B, given, it not being traceable in the apposite records, (ii) and, when only on production, of the original in Court of EX. CW1/B, and, evident existence thereon, of the afore statutorily mandated requirements, of it, hence carrying the official mark or seal of the bank concerned, would, hence enable, the, marshalling, of, the statutory presumption qua the apposite cheque being declined, to be honoured, to, rather hold the fullest conclusivity or sway, (iii) besides it would benumb any endeavour of the defence, to rely, upon the afore statutory coinage, occurring in the last part of Section 146 of the N.I. Act, (iv) reiteratedly for want of ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP 8 production of the original of Ex.CW1/B, this court, is, constrained, to, conclude qua the statutory requirement, of, Ex.CW1/B on its presentation, for its, being honoured, .
hence, being declined to be honoured, rather remaining, within, the ambit, of, Section 146 of the N;I. Act, to be hence, disproven.
10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, also does not suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record.
11. Consequently, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) Judge 30th April, 2019.
(jai) ::: Downloaded on - 03/05/2019 21:58:05 :::HCHP