Himachal Pradesh High Court
_____________________________________________________________________ vs Firoz Mohammad on 6 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Revision No. 59 of 2022
Date of Decision: 06.12.2022
_____________________________________________________________________
Anita Diwan
.........Petitioner
Versus
Firoz Mohammad
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Nikhil Chugh, Advocate.
For the Respondent: Mr. H.S. Rangra, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 of Cr.PC read with Section 401 Cr.PC, lays challenge to judgment dated 29.12.2021, passed by the learned Additional Sessions Judge-2, Mandi, in Criminal Appeal No. 200 of 2018, affirming judgment of conviction and order of sentence dated 5.10.2018, passed by the learned Judicial Magistrate First Class-II, Mandi, whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the "Act"), convicted and sentenced her to undergo simple imprisonment for a period of one month and pay fine to the tune of Rs. 15,000/- to the ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 2 complainant and in default of payment of fine, to further undergo simple .
imprisonment for five days.
2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned JMFC-II Mandi, alleging therein that he was known to the husband of the accused. He alleged that since accused was in need of money for her business and approached him through her husband for loan due to friendly relations, he lent sum of Rs. 2.00 lac to the accused in the month of January, 2012, who with a view to discharge her liability, issued cheque bearing No. 550553 dated 9.7.2012 amounting to Rs.
2,00,000/-drawn at ICICI Bank Branch Mandi, but fact remains that aforesaid cheque on its presentation was returned unpaid through return memo Ex.CW1/B dated 9.7.2012 with remarks "insufficient funds". He alleged that though he had sent legal notice dated 19.7.2012 to the accused through registered post calling upon her to make the payment good within fifteen days, but since she failed to make the payment good, he had no option but to initiate proceedings under Section 138 of the Act in the competent court of law.
3. Complainant while examining himself as CW1 tendered in evidence affidavit Ex.CA reasserting and reiterating the contents of the complaint. Accused in her statement recorded under Section 313 Cr.PC ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 3 denied the case of the complainant in toto. Accused with a view of the .
prove her innocence also examined DW1 Tara Singh, her husband Sh.
Gulshan Kumar as DW2, Dr. H.R. Bhardwaj as DW3 and Smt. Gagan Lata as DW4.
4. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment dated 5.10.2018, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced her as per the description given herein above.
5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, though petitioner-accused and respondent complainant filed appeals before the learned first appellate Court, but appeal filed by the respondent-complainant came to be dismissed on the ground of limitation, whereas appeal having been filed by the petitioner-accused was dismissed on merit by the Additional Sessions Judge-2 Mandi vide judgment dated 29.12.2021, which is subject matter of the present case.
6. Respondent-complainant was aggrieved on account of imposition of fine to the tune of Rs. 15,000/- against the cheque amount of Rs. 2.00 lac. On account of dismissal of his application filed under Section 5 of the Limitation Act, by the learned Single Judge, he approached this ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 4 Court by way of Criminal Revision No. 109 of 2022, which came to be .
allowed vide separate order of the even date, with a direction to the court below to decide the appeal on its own merits.
7. Vide order dated 4.2.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner's depositing fine amount, however fact remains that aforesaid order never came to be complied with.
8. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the judgment passed by the courts below, this Court is not persuaded to agree with Mr. Nikhil Chugh, learned counsel for the petitioner that court below has failed to appreciate the evidence in its right perspective, rather having scanned the entire evidence led on record, this Court finds that both the courts below dealt with each and every aspect of the matter meticulously and there is no scope left for the interference.
9. Interestingly, in the case at hand, factum with regard to issuance of cheque as well as signature upon never came to be disputed.
Though in her statement recorded under Section 313 Cr.PC, petitioner-
accused claimed herself to be innocent, but if the evidence adduced on record by her as well as suggestions put in the cross-examination of the complainant are perused in conjunction, it clearly reveals that cheque in ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 5 question was issued by the accused with a view to discharge her lawful .
liability and same was dishonoured on account of insufficient funds.
10. Mr. Tara Singh DW1 deposed that he had started a committee with Vyasa Devi for Rs. 12,000/- and had handed over one blank cheque to her. He also stated that accused had also handed over one blank unsigned cheque to Vyassa Devi in his presence. In his cross-examination, he admitted that he did not know Vyasa Devi and where she is from. He self stated that he knows husband of Vyasa Devi.
r It is quite apparent from the statement made by this witness that accused had also issued cheque to Vyasa Devi in his presence, but it is not understood that how this cheque came into the hands of the petitioner, who was nowhere related in any manner to this committee business.
11. DW3 Dr. HR Bhardwaj, deposed that blank and unsigned cheque was handed over by the accused to Vyasa Devi and he had also handed over blank cheque to Vyasa Devi before drawing committee.
12. DW2 Gulshan Kumar husband of the accused deposed that he does not know the complainant and his wife did not borrow any money from him. In his cross-examination, this witness denied that he stood surety to his wife in this case, however he admitted signatures on the surety bond dated 16.9.2016A and admitted that he stood surety to his wife.
::: Downloaded on - 09/12/2022 20:31:35 :::CIS 613. DW4 Smt. Gagan Lata, Assistant Post Master Head Post Office .
Mandi, examined with a view to disprove financial capacity of the complainant to lend a huge amount to the accused was of no help to the case of the accused. This witness failed to state anything specific with regard to financial capacity of the complainant to lend the amount to the accused. This witness stated in her cross-examination that postal authorities could not find the account of the complainant in its records. In nutshell, though accused had handed over blank and unsigned cheque to wife of the complainant but nowhere led any evidence that her signatures were forged by the complainant. Memo Ext.CW1/B issued by the banker of the accused reveals that cheque in question was dishonoured for insufficient funds and not for the reason "drawer's signature incomplete/differ." Once petitioner was unable to dispute factum with regard to issuance of cheque and signature thereupon, onus was upon her to prove that she had not issued the cheque towards the discharge the liability. To the contrary, complainant while examining himself as CW1 successfully proved on record factum with regard to his having advanced sum of Rs. 2.00 lac to the respondent, who with a view to discharge liability issued cheque. Complainant successfully proved on record that that aforesaid cheque was presented for encashment, but same was dishonored on account of insufficient funds. He also proved that before initiating ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 7 proceedings under Section 138 of the Act, he issued legal notice CW1/D .
through registered post, which fact otherwise stands established on account of placing of postal receipt CW1/E on record. Cross-examination conducted upon this witness nowhere suggests that accused was able to extract something contrary to what this witness stated in the examination in chief. This witnesses specifically denied the question put to him that accused issued cheque to Vyasa Devi in blank, which itself proves that cheque in question was issued by the accused for discharge of her lawful liability and it bears her signatures.
14. Since accused never disputed the factum with regard to issuance of cheque as well as signature thereupon, there is presumption in favour of the complainant in terms of provisions contained in Section 118 and 139 of the Act that cheque was issued in his favour for discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence.
Probable defence could be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to lead the evidence in defence and raise the probable defence.
::: Downloaded on - 09/12/2022 20:31:35 :::CIS 815. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of .
Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-
"23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.::: Downloaded on - 09/12/2022 20:31:35 :::CIS 9
24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally .
enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.
25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable.
But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy."
16. In the case at hand, complainant successfully proved on record all the ingredients of Section 138 of the Act and as such, no illegality can be said to have been committed by the courts below while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act and as such, same have been rightly upheld by the courts below.
17. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 10 of the concurrent findings of fact and law recorded by the courts below. In .
this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
18. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power.
19. True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of ::: Downloaded on - 09/12/2022 20:31:35 :::CIS 11 the process or miscarriage of justice or to correct irregularities/ .
incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below.
20. Consequently, in view of the discussion made herein above as well as law laid down by the Hon'ble Apex Court, this Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.
21. Accordingly, the present revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.
December 06, 2022 (Sandeep Sharma),
(manjit) Judge
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