Punjab-Haryana High Court
Karamvir vs Ms. Anita Sharma on 5 September, 2009
Author: Rajan Gupta
Bench: Rajan Gupta
CRM No.212-MA of 2009 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH.
CRM No. 212-MA of 2009 (O&M)
Date of decision: 05.08.2009
Karamvir ...Petitioner
Versus
Ms. Anita Sharma ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. Sudhir Aggarwal, Advocate, for the petitioner.
Rajan Gupta, J.
The petitioner through the instant appeal has impugned the judgment dated 16th January, 2009, passed by Judicial Magistrate Ist Class, Gurgaon, whereby the complaint under Section 138 of the Negotiable Instruments Act was dismissed.
The complaint was registered on the allegation that respondent is a clerk in Punjab National Bank, Gurgaon. Her husband, namely, Pardeep Sharma was a clerk with the petitioner in Central Bank of India, Gurgaon. In November, 1998, respondent and her husband requested the petitioner to advance loan of Rs.1.00 lac to purchase a car. The respondent assured to return the loan within three months. Car bearing No. HR-26H-0358 Maruti Zen was purchased by the respondent in the name of her husband. A sum of Rs.42,000/- was returned by the CRM No.212-MA of 2009 2 respondent on 13.1.1999 through cheque no.442381 of Punjab National Bank and the same was encashed. Respondent further issued a cheque bearing No.422384 dated 7th March, 1999 for Rs.30,000/- and cheque No.442385 dated 10th April, 1999 for Rs.20,000/- of Punjab National Bank, Gurgaon towards repayment of the balance amount of loan. The said cheques when presented in bank, were dishonoured on account of stop payment as the payment was stopped by the drawer/respondent.
In the preliminary evidence, the complainant was examined as PW1 and the documents Ex.P1 to P8 were placed on record.
After preliminary evidence, the respondent was ordered to be summoned vide order dated 17th May, 1999.
After appearance of respondent, notice of accusation for the commission of offence under Section 138 of the Negotiable Instruments Act, was issued. Respondent did not plead guilty and claimed trial. Evidence was led by the petitioner.
In after charge evidence, the complainant examined himself as PW1 and Ashok Sharma as PW2.
Statement of the respondent was recorded under Section 313 Cr.P.C. Respondent denied the allegations levelled against him. In defence four witnesses were examined.
The accused examined Mehar Singh Gandhi, Registration Clerk as DW1, I.M. Utreja as DW2, Jitender Kumar as DW3 and A.K. Pahwa as DW4.
After hearing learned counsel for the parties, trial Court CRM No.212-MA of 2009 3 dismissed the complaint under Section 138 of the Negotiable Instruments Act vide order dated 16th January, 2009.
Learned counsel for the petitioner argued that a loan of Rs.1 lac was advanced to the respondent to purchase a Car. Three different cheques were issued to return payment. One cheque No.442381 dated 13.1.1999 for Rs.42,000/- was encashed. Two cheques bearing Nos.422384 dated 7.3.1999 for Rs.30,000/- and No.422385 dated 10.4.1999 for Rs.20,000/- of Punjab National Bank, Gurgaon were dishonoured. Trial Court while appreciating evidence from the file observed that loan was taken for purchasing a car whereas the allegation of the respondent is that cheque was not for discharge of a debt or liability. Mehar Singh Gandhi (DW1) appeared and stated that car was purchased on 28th October, 1998 and the same was financed by a Finance Company. He had proved the documents DW-1/A to DW-1/H. Allegation of the petitioner was that loan was advanced in the month of November, 1998 whereas the car was purchased on 18th October, 1998 i.e. before November, 1998, meaning thereby that the allegation of the petitioner was not true.
The trial court dismissed the complaint by coming to the conclusion that the date of advancing loan had not been mentioned in the complaint and in whose presence the loan was advanced. The court also observed that no document was executed and no interest was charged. It has also come into evidence that husband of accused had taken loan from lot of people and was involved in a case of cheating. CRM No.212-MA of 2009 4 There was no business transaction between the parties. There is no documentary evidence on record to show how he got that much money. Regarding the money, the complainant could not give a satisfactory reply in the cross-examination. He also could not tell when he got the loan from the society. He also could not tell the date when he made the payment to the accused. According to the accused, her husband was involved in a case of cheating. The complainant promised to help him. The cheque was issued in order to pay money to the complainant for that purpose. When case was registered against the husband of the accused, the accused directed the bank to stop payment of the cheque.
Learned counsel has not been able to point out any infirmity in the impugned order nor has he been able to point out any glaring misappreciation of evidence. Moreover, learned counsel has failed to convince how the loan was advanced in the month of November to purchase the car when the car was purchased on 28th October, 1998. Secondly, the car was purchased from PASCO Auto Mobiles, financed by Finance Company that means the cheque was not to discharge legal debt or liability. Regarding payment of Rs.1 lac, no receipt is on the file. No date and time is mentioned when the loan was advanced and in whose presence.
When two versions are there, version in favour of the accused is to be accepted. Trial Court rightly held that no offence under Section 138 of the Negotiable and Instruments Act was committed. CRM No.212-MA of 2009 5 Respondent was rightly acquitted. No ground for interference is made out.
This petition is, accordingly, dismissed.
(RAJAN GUPTA)
August 05, 2009 JUDGE
'rajpal'