Himachal Pradesh High Court
Khub Ram vs Union Bank Of India on 21 October, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 237 of 2017 Reserved on: 14.10.2019 .
Decided on: 21.10.2019 _______________________________________________________________ Khub Ram .....Petitioner Versus Union Bank of India ......Respondent Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
_______________________________________________________________ For the petitioner: Mr. Ajay Chandel, Advocate.
For the respondent: Mr. Aman Sood, Advocate.
Chander Bhusan Barowalia, Judge.
The present petition, under Section 397, read with Section 401 of the Code of Criminal Procedure,1973 has been maintained by the petitioner against the judgment dated 06.07.2017, passed by learned Additional Sessions Judge, Kullu, whereby the judgment of conviction and sentence dated 11.01.2017 passed by the learned Additional Chief Judicial Magistrate, Kullu, District Kullu, H.P., in Criminal Complaint No.1566-I/2013/297-I/2015(old)836-I/2016/13/836- III/2016/2013(new), convicting the petitioner to undergo simple imprisonment for a period of four months and to pay 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/10/2019 20:25:12 :::HCHP 2compensation to the tune of Rs.4,50,000/- and in default of payment of compensation to undergo simple imprisonment for .
two months, has been affirmed; with a prayer to set aside the same and to acquit the petitioner of the charges.
2. The brief facts giving rise to the present petition are that the complainant-Bank, is a body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act No.V of 1970, having its Head Office at 239, Backbay Reclamation, Nariman Point, Bombay (Maharashtra) and its Branch Office at Kullu, H.P., alleged in the complaint that the accused had availed the house loan (Term Loan) of Rs.3,40,000/- on 01.12.2007, from the complainant-bank. The said loan was to be paid, as per the terms and conditions of the agreement, so executed by the accused. In order to discharge the loan liability, he issued the cheque, in question, for the outstanding amount, i.e. Rs.3,49,364/- and assured that the same would be honoured as and when presented before the bank. When the said cheque was presented for its encashment, it was received back dis-honoured due to insufficient funds in the account of the accused. Thereafter, the complainant-bank got issued a legal notice dated 26.10.2013, but it was neither replied nor the payment was made.
::: Downloaded on - 22/10/2019 20:25:12 :::HCHP 33. The learned Court below, as detailed hereinabove, convicted and sentenced the accused which conviction and .
sentence was upheld by the learned Lower Appellate Court, hence, the present petition.
4. I have heard the learned counsel appearing for the parties.
5. Mr. Ajay Chandel, learned counsel for the petitioner has argued that the cheque was neither signed by the petitioner nor it was issued by the petitioner; nor filled in by the petitioner and it was CW-1, (Bank Manager), who has filled in the cheque and even as per the terms of the loan agreement, no demand notice was raised before presenting the cheque. He has further argued that in these circumstances, the Court below should have dismissed the complaint as there was no proof of the cheque being signed by the petitioner or filled in by the petitioner.
6. Mr. Aman Sood, learned counsel for the respondent has argued that the cheque, in question, was duly signed and filled in by the petitioner and the same was also issued by the petitioner to the complainant-bank for the amount due.
7. To appreciate the arguments adduced by the learned counsel for the parties, I have gone through the record in detail.
::: Downloaded on - 22/10/2019 20:25:12 :::HCHP 48. To prove its case, the complainant in the learned Court examined Rakesh Kumar (Branch Manager) as CW-1, .
who reiterated the averments made in the complaint by filing his affidavit duly sworn in, Ext. CA. He has further deposed that he was authorised to file the complaint vide authority letter Ext.CB. In the affidavit, he has deposed that the accused had availed the house loan (Term loan) of Rs.3,40,000/- (Rupees three lacs forty thousand) on 01.12.2007 from the complainant-bank. In order to discharge the outstanding liability, he issued the cheque in question, but when the same was presented for its encashment, it was received back dishonoured due to insufficient funds in the account of accused. A legal notice, Ext.CE was also issued, but of no avail. In case, the trend of cross-examination of complainant as well as the statement of accused under Section 313 Cr.P.C. are perused collectively, it is apparent that the accused was not disputing the fact that a term loan of Rs.3,40,000/- was sanctioned in his name. The defence which is being taken is that the cheque in question was given to the complainant-bank on security basis, the contents of which were filled by the officials of the bank themselves and thereafter, it was presented for encashment. The aforesaid witness has although, admitted about receiving of cheque at the time of sanctioning of loan, but denied that its contents ::: Downloaded on - 22/10/2019 20:25:12 :::HCHP 5 were filled by them. The accused also failed to lead any evidence qua the effect that he did not fill the contents of the .
cheque, hence, the defence in that regard do not hold good.
Moreover, it is apparent from the statement of the accused under Section 313 Cr.P.C., that he was admitting to have received the notice from the bank. In case any liability would not have been outstanding against the accused, then surely, he would have replied to it. Once it was not done, so, an adverse inference is to be drawn against him. Further, the accused stated that he had made part payment towards the loan amount.
9. Statement of the accused under Section 313 Cr.P.C. was recorded. The accused denied the case of the complainant and stated that he had given a signed cheque to the bank as security and the complainant-bank has misused the same by filing a false case. He has further deposed that he had returned major part of the loan amount to the complainant-bank. However, no evidence has been led by the accused in his defence. Learned Trial Court after hearing learned counsel for the parties and going through the record, vide judgment of conviction and order of sentence, dated 11.01.2017, directed the accused to undergo simple imprisonment for a period of four months and to pay compensation of Rs.4,50,000/- to the complainant.
::: Downloaded on - 22/10/2019 20:25:12 :::HCHP 610. After going through the record in detail, it is found that the petitioner nowhere has denied his signatures on the .
cheque, in question, while deposing in his statement under Section 313 Cr.P.C. or while cross-examining the CW-1. It is fact that the loan was disbursed to the petitioner and it is also the fact that he had not repaid the loan amount. In these circumstances, the presumption attached to the cheque when it was duly signed by the petitioner, that it is issued for the discharge of loan liability, which is also admitted by the petitioner and thus the same goes to show that the cheque was dishonoured and the petitioner has failed to make the payment of the cheque amount within the specified period even after the receipt of the legal notice and he has not even replied to that notice. In these circumstances, this Court finds that the judgment passed by the learned Trial Court and affirmed by the learned Lower Appellate Court suffers from no illegality. Hence, the petition is devoid of merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stands disposed of.
(Chander Bhusan Barowalia) Judge October 21, 2019 (M.gandhi) ::: Downloaded on - 22/10/2019 20:25:12 :::HCHP