Himachal Pradesh High Court
Prabhu Dayal Sharma vs Suraj Mani on 2 March, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Appeal No. 212 of 2016
Decided on : 02/03/2017
Prabhu Dayal Sharma .....Appellant.
of
Versus
Suraj Mani .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes
For the Appellant: Mr. J.L.Bhardwaj, Advocate.
For the Respondent: Mr. G.R.Palsra, Advocate.
_______________________________________________________
Sureshwar Thakur, Judge (Oral)
The instant appeal stands directed against the impugned judgment rendered by the learned Judicial Magistrate 1st Class, Manali, District Kullu, Himachal Pradesh, whereby he dismissed the complaint instituted therebefore under Section 138 of the Negotiable Instruments Act by the complainant.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The brief facts of the case are that complainant and the .
accused were known to each other and in the month of October, 2008 the accused approached the complainant for financial help for his personal use and domestic needs and the accused had of borrowed a sum of Rs.2,00,000/- from the complainant and in discharge of his liability the accused has issued and handed over rt a cheque amounting to Rs.2,00,000/- drawn on the Himachal Pradesh State Cooperative Bank Limited, branch Balichowki in favour of the complainant. As per the complainant, on presentation, the said cheque was returned being dishonoured vide memo dated 02.01.2009 with remarks insufficient funds. As per the complainant, even after issuance and receipt of legal notice no payment was made by the accused. After recording of preliminary evidence Court of the Judicial Magistrate 1st Class, Manali, took cognizance against the accused and notice of accusation under Section 138 of the Negotiable Instruments Act was put to the accused to which he pleaded not guilty and claimed trial.
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3. In order to prove its case, the complainant examined .
himself as CW-1. On closure of complainants' evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence of and claimed false implication. He chose to lead evidence in defence.
4. rt On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
5. The learned counsel for the complainant has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather theirs standing sequelled by gross mis-appreciation by it of the relevant material on record. Hence, he contends qua the findings of acquittal standing reversed by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction.
6. The learned counsel appearing for the respondent has with considerable force and vigour contended qua the findings of acquittal recorded by the Court below standing based on a ::: Downloaded on - 15/04/2017 21:57:55 :::HCHP ...4...
mature and balanced appreciation of evidence on record by the .
learned trial Court and theirs not necessitating any interference, rather theirs meriting vindication.
7. This Court with the able assistance of the learned of counsel on either side has with studied care and incision, evaluated the entire evidence on record.
8. rt Negotiable instrument comprised in Ext. CW-1/A holding therein a sum of Rs.2,00,000/- stood issued by the accused/respondent qua the appellant complainant. On its presentation before the bank concerned, it, on account of lack of sufficient funds for liquidating the amount recited therein, stood hence refused to be honoured by the bank concerned whereupon a complaint stood instituted by the aggrieved complainant under Section 138 of the Negotiable Instruments Act before the learned Magistrate concerned. The learned Judicial Magistrate concerned initially convicted the accused whereupon with the latter standing aggrieved, preferred an appeal therefrom before the learned Sessions Judge, Kullu whereupon the learned Appellate Court while reversing the verdict pronounced by the learned Judicial ::: Downloaded on - 15/04/2017 21:57:55 :::HCHP ...5...
Magistrate concerned remanded the complaint for its fresh .
adjudication by the learned Judicial Magistrate 1st Class, Manali, thereupon the latter proceeded to dismiss the complaint arising from dishonour of negotiable instrument comprised in Ext.CW-
of 1/A. The reason as assigned by the learned trial Court to pronounce an order dismissing the complaint instituted rt therebefore by the complainant stands anchored upon the factum of the bank account number whereagainst cheque Ext.CW-1/A stood drawn for meteing/liquidating the purported pecuniary liability arising from the proven commercial transaction inter se the accused vis.a.vis the complainant, standing neither owned, managed or controlled in his individual capacity by the respondent/accused rather his managing the relevant account number whereagainst cheque Ext.CW-1/A stood issued, in the capacity of his being the Secretary of the Chhanjiwala Markanda CMP Society, thereupon it per se concluded qua their existing no privity of contract inter se the accused and the complainant whereupon it stood constrained to dismiss the complaint instituted therebefore by the complainant. The reason aforesaid ::: Downloaded on - 15/04/2017 21:57:55 :::HCHP ...6...
would hold vigour, only if cheque Ext.CW-1/A held vivid .
reflections therein qua the accused, in the capacity of his holding the position of Secretary of the Society concerned signaturing Ext.CW-1/A, reflections whereof warranted a graphic pronouncement of therein comprised in the signatures of the accused as stand endorsed thereon, holding thereunder the seal of the society rt concerned. However, the aforesaid reflections are amiss therein hence constraining this Court to conclude qua the accused hence strategizing to mislead the complainant qua the account number whereagainst Ext.CW-1/A stood issued for its standing drawn also his thereupon colouring the factum qua his not standing individually enjoined to liquidate vis-à-vis the complainant the amount constituted therein qua rather the society concerned holding the apposite liability to liquidate vis-à-vis the complainant the sum constituted therein, also it appears qua in his issuing a cheque apparently drawn against the accounts of the society, his with a malo animo pre-contemplating a ground to thereupon contend qua with there, hence, existing no privity of any mercantile pecuniary contract inter se them, thereupon his ::: Downloaded on - 15/04/2017 21:57:55 :::HCHP ...7...
achieving success in rendering the apposite complaint as may .
come to be instituted by the aggrieved before the Court concerned, to suffer its dismissal. The further factum of the accused not adducing evidence comprised in the books of of accounts maintained by him in his capacity as Secretary of the Society concerned, with manifestations therein qua the amount rt held in the cheque, standing owned by the society visibly the respondent renders the inevitable inference qua the society concerned from whose account a cheque stood issued for its standing drawn, it thereupon not standing issued qua liquidation of its liability vis-à-vis the complainant rather it standing issued for liquidating the personal liability of the accused vis-à-vis the complainant. The learned trial Magistrate has slighted the impact of the aforesaid material whereupon it has proceeded to dismiss the complaint in a most casual and cursory manner. Since all the evidence as stands adduced by the complainant before the learned trial Magistrate pointedly depicts therein qua satiation qua the ingredients constituted in Section 138 of the Negotiable Instruments Act standing begotten, thereupon it was incumbent ::: Downloaded on - 15/04/2017 21:57:55 :::HCHP ...8...
upon the learned trial Magistrate to pronounce an order of .
conviction upon the accused whereas his pronouncing an order of acquittal upon the accused, resting it upon the aforesaid per se flimsy reason has sequelled his committing a manifest error of his of grossly mis-appreciating besides his not appreciating the aforesaid relevant and germane material.
9. rt In view of the above discussion, I find merit in this appeal which is accordingly allowed and the impugned judgment of the learned trial Court stands reversed and set aside.
Accordingly, the respondent/accused stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. The accused be produced on 16.3.2017 before this Court for his being heard on the quantum of sentence.
Record(s) of the learned trial Court be sent back forthwith.
2nd March, 2017. ( Sureshwar Thakur )
™ Judge.
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