Punjab-Haryana High Court
M/S Goodwill Hire Purchase Corporation vs Daljit Singh Alias Jangi on 30 June, 2010
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Misc. No.230 MA of 2010 (O&M)
Date of decision: 30.6.2010
M/s Goodwill Hire Purchase Corporation
......Petitioner
Vs.
Daljit Singh alias Jangi
...Respondent
CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.Amit Dhawan, Advocate,
for the petitioner
****
ORDER
The present application under Section 378(3) Cr.P.C. for permission to grant leave to appeal against judgment of acquittal dated 30.10.2009 passed by Judicial Magistrate Ist Class, Jalandhar in complaint under Section 138 of the Negotiable Instruments Act ( for short "the Act") has been filed by the petitioner vide which the accused-respondent has been acquitted of the charge framed against him.
Mr.Amit Dhawan, learned counsel for the petitioner submits that the learned trial Court while acquitting the accused-respondent has not appreciated the evidence available on record to prove the commission of offence under Section 138 of the Act. The petitioner has proved on record the dishonoured cheque, a bank memo and legal notice issued by the petitioner to the accused and presumption under Section 139 of the Act lies in favour of the petitioner Learned counsel for the petitioner further submits that the learned trial Court has wrongly held that the accused- respondent succeeded to rebut the presumption lies against him under Crl.Misc. No.230 MA of 2010 [-2-] Section 139 of the Act. The hire purchase agreement dated 10.9.2004 was executed between the petitioner and the accused and accused was to re-pay that amount of loan and accordingly issued cheque in question which was dishonured and a complaint was filed on account of failure of accused- respondent to discharge his legally enforceable debt.
I have heard the arguments of learned counsel for the petitioner and have also gone through the impugned order passed by the trial Court.
As per case of the applicant, a complaint was filed by the complainant under Section 138 of the Act against the accused-respondent on the allegation that respondent entered into a hire purchase agreement with him to get an amount of loan on interest and he also agreed to re- pay the loan amount but when that amount was demanded by the complainant-firm, the accused issued a cheque in favour of the complainant which was presented for encashment but the same was dishonoured on the ground of "insufficient funds" A legal notice was served upon the accused- respondent to make payment of the cheque but the payment was not made inspite of receipt of notice within the statutory period of 15 days and accordingly the complaint was filed.
On the basis of preliminary evidence led by the complainant, the accused-respondent was ordered to be summoned and a prima-facie case under Section 138 of the Act was made out against him. On the basis of evidence adduced by the complainant as well as the accused-respondent, the learned trial Court acquitted the accused-respondent of the charge framed against him which is a subject-matter of present petition.
Learned trial Court has acquitted the respondent on the ground Crl.Misc. No.230 MA of 2010 [-3-] that the complainant-firm was not able to prove the case against the accused and he failed to produce on record any money -lending licence as well as hire purchase agreement. The complainant has neither placed nor proved on record the alleged hire purchase agreement nor any statement of account relating to alleged hire purchase transaction and as such in absence of any documentary proof, it could not be presumed or established that the accused-respondent ever entered into any hire purchase agreement with him. Even no statement of account was produced by the complainant to show the liability of the accused and nothing was shown in the Income-tax Record, inspite of the fact that complainant firm is Income-tax Assessee and no bank record was produced on file from which it could be inferred that the amount paid to the accused was withdrawn from any bank. Moreover, the complainant failed to prove on record that there was no legally enforceable debt of the accused, there was no liability of the accused to make payment of the alleged amount to the complainant and presumption under Section 139 of the Act stands rebutted. This view has been supported by the judgment of Hon'ble the Apex Court in Krishna Janardhan Bhat vs. Dattatraya G.Hedge 2008(1) R.C.R.(Civil) 498 wherein it has been observed as under:
"The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raised a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Crl.Misc. No.230 MA of 2010 [-4-] Section 139 of the Act. It merely raised a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability."
In Krishna Janardhan Bhat's case (supra), it is further observed as under:
" The Courts below failed to notice that ordinarily in terms of Section 269 SS of Income Tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an amount payee cheque only."
In the present case, Rajminder Singh CW-1, the partner of the complainant-firm has specifically stated that the accused came to the office of the complainant -firm and entered into a hire purchase agreement and advanced the loan amount to the accused and also agreed to re-pay the loan amount on interest due on it . As per statement of the accused under Section 313 Cr.P.C., he never obtained any loan and complainant obtained his blank signed cheque with the assurance that he will be granted some loan amount but the said loan amount was never given to him. No cheque was ever issued to the complainant -firm in discharge of his legal debt or liability. The complainant has neither placed on record nor proved the alleged hire purchase agreement nor any statement of account relating to hire purchase transaction has been proved or placed on record. Thus, in absence of any documentary proof, it cannot be said that the accused ever entered into hire purchase agreement with the complainant. Admittedly, a mandatory presumption is required to be raised in terms of Section 118 (6) Crl.Misc. No.230 MA of 2010 [-5-] and Section 139 of the Act. Section 13(1) of the Act defines ' negotiable instrument' to mean " a promissory note, bill of exchange or cheque payable either to order or to bearer".
Section 138 of the Act has three ingredients, viz:
i) that there is a legally enforceable debt;
ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and
iii)that the cheque so issued had been returned due to insufficiency of funds.
Section 139 of the Act raises a presumption in regard to existence of a debt. 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 and same has been issued for discharge of any debt or other liability.
Hon'ble the Supreme Court in Krishna Janardhan Bhat's case (supra) has held as under:
" The presumption of innocence is a human right.[ see Narender Singh and another v. State of M.P. 2004(3) RCR (Criminal) 613; Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra and another [2005] 5 SCC 294 and Rajesh Ranjan Yadav alias Pappu Yadav v. CBI through its Director 2007(1) RCR (Crl.) Crl.Misc. No.230 MA of 2010 [-6-] 166] Article 6(2) of the European Convention on Human Rights provides:
" Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused rights and the interest of the society is required to be taken into consideration. In Indian, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative Crl.Misc. No.230 MA of 2010 [-7-] can never be proved but there are cases where such difficulties are faced by the accused e,g,. honest and reasonable mistake of fact. In a recent Article " The presumption of Innocence and Reverse Burdens: A Balancing Duty" published in [2007] C.L.J. (March Part) 142 it has been stated:- "In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden ? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have grater sway where the reverse burden would not pose the risk of great injustice - where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment."
As the complainant has not only failed to prove on record the alleged hire purchase agreement but also failed to prove that the cheque in Crl.Misc. No.230 MA of 2010 [-8-] question was issued in discharge of legal liability. Since the applicant has failed to prove the necessary ingredients of commission of offence under Section 138 of the Act, the presumption under Section 139 of the Act also stands rebutted and there was no liability of the accused to make payment of the loan amount to the complainant. Accordingly, the learned trial Court has rightly acquitted the accused-respondent from the charge framed against him under Section 138 of the Act.
In view of the facts and circumstances of the present case and the positon of law as discussed above, There is no merit in the contention raised by the learned counsel for the applicant and present application for permission to grant leave to appeal is dismissed.
(DAYA CHAUDHARY) JUDGE June 30, 2010.
raghav