Punjab-Haryana High Court
Pritam Singh vs Krishan Kumar Bansal on 3 May, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.769-SBA of 2000
Date of decision: May 03, 2010
Pritam Singh
.. Appellant
Vs.
Krishan Kumar Bansal
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Pardeep Goyal, Advocate for the appellant.
None for the respondent.
A.N. Jindal, J
This appeal has arisen out of the judgment dated 15.11.1999
passed by the Sub Divisional Judicial Magistrate, Sunam, acquitting the
accused-respondent Krishan Kumar Bansal (herein referred as 'the accused')
of the offence under Section 138 of the Negotiable Instruments Act (herein
referred as 'the Act').
None has put in appearance on behalf of the respondent despite
service.
The appellant-complainant (herein referred as 'the
complainant') advanced a loan of Rs.46,000/- to the accused. After
rendition of the accounts, the accused was held liable to pay a sum of
Rs.46,000/- to the complainant as on 19.6.1995. In order to discharge his
liability, the accused issued cheque No.831768 dated 15.11.1997 for a sum
of Rs.10,000/- in favour of the complainant, which was tendered in the State
Bank of India for encashment on 18.12.1997 which was returned with the
remarks "insufficient funds" on the same day. Thereafter, a legal notice was
issued on 24.12.1997 upon the accused through his counsel Mr. G.C. Gupta,
Advocate which was received by the accused on 26.12.1997, but he failed to
respond, as such a complaint was filed on 17.1.1998.
After recording preliminary evidence, the trial court ordered to
summon the accused. Thereafter notice of accusation under Section 138 of
the Act was issued, to which the accused pleaded not guilty and opted to
contest.
Criminal Appeal No.769-SBA of 2000 -2-
***
In order to substantiate the charges, the complainant examined K.K. Aggarwal, Field Officer of State Bank of India, Sunam Branch (PW1), Pritam Singh complainant (PW2), Joginder Singh Clerk of Gian Chand Gupta Advocate (PW3) and V.B. Bhatnagar Handwriting expert (PW4).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. However, he further explained that he has been running a Karyana shop at village Chathe Nanhera and the complainant used to purchase goods from him on credit and when the accused pressurized the complainant for making the payment, then the complainant filed this false complaint against him. However, no evidence was led in defence.
The trial court while acquitting the accused made the following observations :-
1. The complainant has failed to produce any person in whose presence the cheque was delivered by him to the accused.
2. The cheque Ex.P1 does not contain any such endorsement and even signatures of accused on the reverse side thereof, although it bears the signatures of the complainant.
3. The cheque Ex.P1 does not bear the stamp of the firm of the accused without which his bank was not liable to make payment.
4. The cheque has been dishonoured not for want of endorsement of the accused, but because his amount had been over drawn.
5. The complainant had failed to identify the signatures of the accused on the face of the cheque.
6. The cheque does not bear the name of the branch of the State Bank of India on which it has to be drawn, as such, the cheque was to be dishonoured even if there had been sufficient balance in the account of the accused.Criminal Appeal No.769-SBA of 2000 -3-
***
7. The documents produced on record by the complainant Pritam Singh (PW2) are not perse admissible in the evidence. The presumption of truth is attached to the copy of the statement of account which is duly certified to be correct as per Section 4 of the Bankers Books Evidence Act.
8. K.K. Aggarwal (PW1) has failed to disclose the name of any official which issued the cheque to the accused or handled the same on being presented has not been mentioned.
9. K.K. Aggarwal (PW1) has not produced the cheque book issue register, cheque returning register maintained by his bank, nor he identified the handwriting of the official who prepared the document except the returning memo Ex.P2.
10. The complainant has not proved if he is the proprietor of M/s Bansal General Store On perusal of the evidence, this court is of the view that the trial court has not properly appreciated the evidence led by the complainant and has omitted to touch the core issue regarding the offence. The complainant while appearing in the witness box has stated that the cheque was issued on behalf of M/s Bansal General Store. He is the author of the cheque. He states that he had lent the said amount and in discharge of the said liability the cheque was issued in his favour. The complainant is not presumed to see the status of the firm and he is to see if the cheque so issued in his favour was dishonoured and if dishonoured then what was the cause of dishonouring of the same. The trial court has over looked the basic requirements of law in order to constitute the offence under Section 138 of the Act. It is well settled by now that when once the cheque is issued, it would be presumed that the cheque was issued in discharge of legally enforceable liability unless it is proved otherwise. The complainant has duly proved the documents on record in order to show that the accused had issued the cheque Ex.P1 on 15.11.1997 and the same was dishonoured vide memo Ex.P2. The statement of account is perse-admissible which had been Criminal Appeal No.769-SBA of 2000 -4- *** brought on record as Ex.P4. The complainant has duly proved the notice Ex.P5 which was received by the accused on 26.12.1997. He has also proved the acknowledgment Ex.P6, postal receipt Ex.P7, UPC Ex.P8, in order to attract the presumption under Section 118 of the Evidence Act that the notice was duly served upon the accused. The trial court appears to have not taken note of all the documents proved on the record. The court has also not examined as to what inference could be drawn if no reply to the notice has been submitted by the accused. As such, the judgment appears to be passed on mis-appreciation and mis-reading of the evidence warranting interference by this Court. The trial court also appears to have gone beyond the scope of law as envisaged under Section 138 of the Act while considering the liability of the accused, therefore, it would certainly have to be observed that the impugned judgment is perverse warranting interference by this court.
For the foregoing reasons, the appeal is accepted, the impugned judgment is set aside and the case is remitted back to the trial court to decide the case afresh in accordance with law. The observations, if any, made in the preceding paras would not effect the merits of the case.
May 03, 2010 (A.N. Jindal) deepak Judge