Punjab-Haryana High Court
M/S Sekhon And Sekhon Finance And ... vs Rani on 21 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-212-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A 212-MA of 2012 (O&M)
Date of Decision: August 21, 2013
M/s Sekhon and Sekhon Finance and Investment Company
... Petitioner
Versus
Rani
... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Sham Lal Bhalla, Advocate,
for the petitioner.
Paramjeet Singh, J.
The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 12.12.2011 passed by the learned Judicial Magistrate 1st Class, Ludhiana, whereby respondent has been acquitted of the accusation under Section 138 of the Negotiable Instruments Act notice of which was served upon him.
Brief facts of the case as mentioned in the impugned judgment are as under:-
"The complainant firm has filed this complaint alleging inter Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 2 alia that the accused took a loan of Rs.1,40,000/- from it vide two cheques dated 2.3.2006 and 24.5.2006 for Rs.70,000/- each. An amount of Rs.1,45,600/- including the principal amount and interest was due to be paid by the accused as on 31.10.2007. In discharge of this existing legal liability, the accused issued cheque no. 526485 dated 01.11.2007 for a sum of Rs.1,45,000/- drawn on Punjab National Bank, Gill Road, Ludhiana. However, on presentment of the said cheque by the complainant through its bankers, it was received back dishonoured vide bank memo dated 02.11.2007 with the remarks "account closed". Upon this, the complainant firm got issued the statutory legal notice through its counsel on 27.11.2007 calling upon the accused to make good the amount covered under the cheque in question but despite this, the accused did not pay the said amount within 15 days from the date of receipt of the notice. Hence, the complainant firm has been constrained to file the present complaint."
On the preliminary evidence, learned trial Court summoned the accused-respondent. Thereafter, accused was served with notice of accusation for offence punishable under Section 138 of the Negotiable Instruments Act,1881, to which she pleaded not guilty and claimed trial.
In order to prove the guilt of accused, complainant has examined himself as CW1 and Sh. V.K. Walia as CW2.
Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded. All incriminating facts and circumstances were put to the accused wherein she pleaded innocence and false implication.
The learned Trial Court, after appreciating the evidence, acquitted the accused-respondent of the notice of acquisition served upon Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 3 him vide judgment dated 12.12.2011. Hence, this application for grant of leave to appeal.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"9. At the very outset it is pertinent to note that the entire edifice of the complainant firm's case is based upon a loan agreement entered into between the parties. But to the utter dismay of this Court the complainant firm has neither placed on record nor proved the alleged loan agreement or any other corroborative document in this regard. Admittedly the complainant firm is a registered firm dealing solely in financial transactions and so it cannot be believed that a sum of Rs.1,40,000/- was advanced to the accused without there being any written agreement between the parties. Only a duly scribed loan agreement / contract arrived executed between the parties, could have thrown light on vital aspects of the alleged transaction viz. the total amount financed, total amount repaid and outstanding till the date of bouncing of the disputed cheque, the payment schedule, the terms and conditions agreed upon by the parties etc.. In the absence of a duly executed loan agreement, some vital aspects like charging of an exemplary high rate of interest of four percent per month (forty-eight percent per annum) plus Rs. Thirty Five per day as late charges, seem totally `unconscionable'. Without there being a written acquiescence or acknowledgment or consent from the side of the accused, such terms and conditions appear absolutely unreasonable, Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 4 unacceptable and contrary to the ordinary trade practices. Although the complainant firm has heavily relied upon the account statement Ex.C16 but it is imperative to observe that this statement of account can neither be construed as a `loan agreement' in any manner not does this statement of account bear the signatures of the accused as a token of her admission of the contents of the same. This statement of account is a self-serving document and does not in any manner suggest or prove that the accused ever took a loan of Rs.1,40,000/- from the complainant firm or that she agreed to pay the alleged rate of interest and late payment charges. It needs to be borne in mind that although a mandatory presumption is required to be raised in favour of the complainant in terms of sections 118 and 139 of the Act nevertheless existence of a `legally recoverably debt' is not a matter of presumption under these sections, as opined in Krishna Janardhan Bhatt v. Dattatraya Hedge 2008 (1) RCR Civil 498 wherein it has been categorically held thus -
"existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability."
Thus, in the present case, the onus to prove that there in fact existed a legally enforceable debt was upon the complainant firm and none else and this onus could have been best discharged by providing and placing on record the original loan agreement executed between the parties. But the complainant firm has failed to prove any such document on record, as a result of which the essential ingredients of the offence defined under section 138 of the Act have not been Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 5 proved. The benefit of this shortcoming on the part of the complainant firm would necessarily go to the accused. While holding so, this court places strong reliance upon the decision of our own Hon'ble High Court in M/s Goodwill Hire Purchase Corporation v. Daljit Singh alias Jangi, 2011 (1) RCR Civil 132. The facts of this cited case are akin to the present case and the Hon'ble High Court upheld the acquittal of the accused on the ground of non-production of the original hire-purchase agreement. It is further interesting to note that in the present case as per the averments of the complainant firm, an interest rate as high as four percent per month (forty-eight percent per annum) is being charged from the debtors whereas in the income tax returns for the assessment years 2006-07 and 2007-08 (Ex.D1 and D2 on file) gross income amounting to Rs.7972/- and Rs.11513/- only is being reflected. The figures reflected in the tax returns do not in any manner tally with the overall financial position reflected by the statement of account Ex.C16. This goes to suggest that there is some sort of active and deliberate concealment on the part of the complainant firm which makes the entire story shady and unworthy of credence.
10. One point of argument which has been vehemently asserted by the ld. Counsel for the complainant is that the accused has not denied her signatures over the cheque in question, so she cannot wriggle out of the penal liability under section 138 of the Act. This line of contention does not hold any merit or weight once the accused has specifically denied the existence of a legally enforceable debt. It has been held by the Hon'ble Kerala High Court in Bindu vs. Sreekantan Nair, 2007(3) RCR Criminal 72 that admission of signatures on the cheque is not synonymous with admission Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 6 of execution and does not take away the right of the accused to contend that a blank signed cheque was mis-utilized by the payee. In view of this authority it can be safely deduced that mere admission of signatures on the cheque does not in any manner tantamount to admission of guilt especially when the accused has come up with a specific stance that the cheque in question was not issued in discharge of any enforceable legal liability. The evidentiary aspect of the offence under section 138 is strongly circumscribed by the statutory presumptions provided under sections 118 and 139 of the Act but it must be borne in mind that presumptions are rules of evidence and do not in any way conflict with the presumption of innocence. The statutory presumptions do not preclude an accused against whom the presumption is drawn from rebutting it and proving the contrary. It has been held in Hiten P. Dalal vs. Bratindranath Banerjee, 2001(3) RCR (Criminal) 460, that the rebuttal led by the accused does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonable probable, the standard of reasonability being that of a `prudent man'. It has been further held quite recently by the Hon'ble Apex Court in Krishna Janardhan Bhatt's case (cited supra) that the standard of proof on the part of the accused and that of prosecution in a criminal case is different; the accused has a constitutional right to maintain silence and he/she may discharge his burden on the basis of the material already brought on records. Applying the ratio of the above cited cases to the facts and circumstances of the present case, this court has no hitch in opining that on the basis of the shortcomings on the part of the complainant firm, Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 7 the accused has been successful in raising preponderance of probabilities in her favour
14. In view of the reasons detailed in paras above, this court is of the considered opinion that the accused has been triumphant in bringing forth a probable defence strong enough to rebut the statutory presumptions...."
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v.
Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis- reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
In 'Mrinal Das & others v. The State of Tripura, Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 8 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 9 to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."Kumar Virender 2013.08.23 12:59 I attest to the accuracy and integrity of this document CRM A-212-MA of 2012 (O&M) 10
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
August 21, 2013 [Paramjeet Singh]
vkd Judge
Kumar Virender
2013.08.23 12:59
I attest to the accuracy and
integrity of this document