Himachal Pradesh High Court
Date Of Decision: 24.08.2024 vs Jatinder Singh And Anr on 24 August, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:7474 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Criminal Revision No. 101 of 2023 Date of decision: 24.08.2024 _______________________________________________________ .
Baldev Raj Batra ...........Petitioner Versus Jatinder Singh and Anr. ........Respondents _______________________________________________________ Coram :
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 _______________________________________________________ For the Petitioner: Mr. Abhishek Nagta, Advocate.
For the Respondents:Mr. Divya Raj Singh, Advocate, for respondent No.1.
Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General, for the State.
______________________________________________________ Sandeep Sharma, Judge (Oral) :
Instant criminal revision petition filed under Section 397 of Cr.PC lays challenge to judgment dated 05.11.2022, passed by the learned Additional Sessions Judge (I), Una, District Una, H.P in CNR HPUN01002582-
2022 & Cr. Appeal No.37/2021, affirming judgment of conviction and order of sentence dated 28.10.2021, passed by the learned Additional Chief Judicial Magistrate, Court No.I, Una, H.P., in Complaint case RBT No.100-II-
2016/2011, titled as Jatinder Singh Rana Versus Baldev 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/08/2024 20:29:44 :::CIS 2Raj Batra, whereby the Court below while holding the petitioner-accused (hereinafter, "accused") guilty of having committed offence punishable under Section 138 of .
the Negotiable Instruments Act (in short the "Act"), convicted and sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs.8,20,000/- to the respondent-complainant (hereinafter complainant).
2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, "complainant) instituted a complaint under Section 138 of the Act, before the learned Additional Chief Judicial Magistrate, Court No.I, Una, District Una, H.P, against accused, alleging therein, that in the month of May 2011, accused who had friendly relations with him, asked him to lend Rs.5,00,000/- which at relevant time was urgently required by accused for his business purposes.
3. The complainant alleged that on his request, he advanced him a sum of Rs.5,00,000/- by arranging it from his relatives and friends but fact remains that the aforesaid amount was not repaid within the stipulated time but subsequently with the view to discharge his lawful liability, accused issued Cheque No.404562 dated 06.07.2011 ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 3 amounting to Rs.5,00,000/- but aforesaid cheque on its presentation with the bank i.e. Union Bank of India, Branch Una, was returned vide Memo dated 08.07.2011 .
with the remarks "insufficient funds". Since accused requested complainant to again present the cheque after 20 days, he again presented the same to bank concerned on 26.07.2011 but the same was returned unpaid on account of "insufficient funds" in the bank account of the accused.
4. Complainant served accused with legal notice dated 08.08.2011 calling upon him to make the payment good within stipulated time but in vain. In the aforesaid background, complainant was compelled to insitute proceedings under Section 138 of Negotiable Instruments Act in the competent Court of law, which subsequently on the basis of pleadings as well as evidence adduced on record by the respective parties held the petitioner-accused guilty of his having committed an offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.
5. Though at the first instance, accused being aggrieved with the aforesaid judgment of conviction and order of sentence, recorded by the Court below preferred an appeal in the Court of Learned Additional Sessions Judge ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 4 (I), Una but same was also dismissed vide impugned judgment dated 05.11.2022. In the aforesaid background, petitioner-accused has approached this Court by way of .
instant proceedings, praying therein for his acquittal after setting aside the judgments of conviction and order of sentence recorded by the courts below.
6. Vide order dated 02.03.2023, this Court suspended the substantive sentence imposed by learned Court below, subject to petitioner-accused depositing to 50% compensation amount and furnishing personal bonds in the sum of Rs.25,000/- within two weeks. Though in terms of aforesaid order, accused furnished personal bail bonds, but failed to deposit the amount. Subsequently, 50% amount in terms of order dated 02.03.2023, ultimately, came to be deposited as has been recorded in order dated 03.07.2023. Though, repeatedly opportunity was granted to accused to deposit the entire amount of compensation, enabling this Court to consider prayer, if any, made for compoundable offence, however, till date balance amount has been not deposited.
7. Today, Mr. Abhishek Nagta, learned counsel representing petitioner submitted that since despite repeated communication, petitioner is not coming forward ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 5 to impart instructions, this Court may proceed to decide the case on its own merits.
8. Having heard learned counsel representing the .
parties and perused material available on record, vis-a-vis reasoning assigned in the impugned judgment passed by learned Additional Sessions Judge, this Court finds no legality and infirmity of the same and as such no interference is called for. Having scanned pleadings as well as evidence adduced on record by the respective parties, this Court is not persuaded to agree with Shri Abhishek Nagta, Advocate, representing petitioner that Court below has failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below have appreciated the evidence in right perspective, and there is no scope of interference.
9. Interestingly, in the case at hand, there is no denial, if any, on the part of the accused with regard to his having issued cheque as well as signature thereupon rather, accused in his statement, recorded under Section 313 of Cr.P.C., attempted to carve out a case that cheque was issued as a security and the complainant misused the same. Since, factum with regard to issuance of cheque as a signature thereupon, never came to be disputed, learned ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 6 Courts below rightly invoked Section 118 and 139 of Act, which talk about presumption in favour of holder of cheque that same were issued towards discharge of lawful liability.
.
No doubt, aforesaid presumption is rebuttable but for that purpose, person seeking to rebut such presumption is either to refer to the pleadings as well as evidence adduced on record by complainant or he/she can lead positive evidence. In the case at hand, despite sufficient opportunity, no evidence ever came to be led on record by the accused, as a result thereof, presumption in favour of complainant that the cheque in question was issued towards discharge of lawful liability, never came to be rebutted.
10. 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 ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 7 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.
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 ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 8 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."
11. In the case at hand, complainant with a view to prove its case, examined himself as CW-2. While tendering evidence by way of affidavit Exhibit CW-1/AA, complainant successfully proved the contents of the complaint. Besides this, he also tendered certain documents in his evidence i.e. cheque Exhibit CW-1/A, notice Exhibit CW-1/B, return memo Exhibit CW-1/C, postal receipt Exhibit CW-1/D, acknowledgement CW-1/E, bank memo Exhibit CW-1/F, cheque return memos Exhibit CW-1/G & CW-1/H. If, ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 9 cross-examination conducted upon aforesaid witness is perused in its entirety, it cannot be said that the accused was able to extract something contrary what this witness .
stated in his examination-in-chief. Rather, pattern of cross-
examination, if seen, clearly reveals that cheque in question was actually issued by the accused towards discharge of his lawful liability, but yet an attempt came to be made on his behalf to set up a case, that sum of Rs.5,00,000/- was never taken by him, rather cheque in question was issued as a security. Accused also attempted to prove that the complainant had no sufficient means to advance the loan, and as such, he has concocted a false story. But the complainant in his cross-examination, specifically denied suggestion put to him that he was not having cash with him at that time. He stated that he after arranging money from his relatives, advanced the loan of Rs.5,00,000/- to the accused. He admitted that accused had borrowed money for opening a Saloon. While admitting that no written document was prepared, this witness categorically deposed that he had given money to the accused in presence of his mother. He stated that he had obtained Rs.3,00,000/- from Rajindaer Thakur alias Dimple and Rs.2,00,000/- from his father and then had paid it to the ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 10 accused. He stated that accused had given a cheque at his shop at Mehatpur on. 06.07.2011 and he himself had filled up the cheque with the instruction to withdraw the money .
from the bank next day. He stated that though he resides in rented accommodation at Rakkar, but has an annual income of Rs.7-8 lakh from taxi, restaurant and 7-8 acre of land at Garhshankar, Punjab, which is ancestral. While specifically denying suggestion put to him that accused had not issued any cheque, this witness repeatedly denied that name and account in the cheque were not filled by the accused, rather he volunteered that cheque was already filled when it was handed over to him.
12. Father of the complainant appeared as CW-2, who successfully corroborated the version put-forth by the complainant that he had taken Rs.2,00,000/- from him for giving it to the accused. Cross-examination conducted upon this witness is also not for any help to the case of the accused because he did not utter a word which could be otherwise said contrary to the statement he had made in his examination-in-chief.
13. Accused in his statement recorded under Section 313 of Cr.P.C though denied the case of complainant in toto, but he failed to dispute factum with ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 11 regard to the issuance of the cheque as well as signature thereupon. While stating that his son had relation with him and he did not receive a legal notice, he deposed that he .
had enquired from his son, who told that complainant had misused the security cheque given to the party in Hoshiarpur. Record reveals that though accused had opted for defence evidence and after application for additional evidence of complainant, again his statement under Section 313 of Cr.P.C was recorded on 13.09.2019, wherein, he denied and disputed the cheque Exhibit CW-1/A drawn under his signature on the account maintained by him. He stated that since his wife had good relations with the complainant and as he was dealing with the cash transactions, he took the cheque-book and misused it.
14. Though, accused was provided adequate opportunity to lead evidence in defence, but he failed to do so. Since, accused failed to rebut the presumption as envisaged under Sections 118 and 139 of the Act, the cheque was issued towards the discharge of lawful liability by leading cogent and convincing evidence, no illegality otherwise can be said to have been committed by Courts below while holding him guilty of committing offence under Section 138 of Negotiable Instruments Act.
::: Downloaded on - 29/08/2024 20:29:44 :::CIS 1215. Besides above, accused in his second statement recorded under Section 313 of the Cr.P.C, attempted to carve out a case that since complainant had good relation .
with his wife, he had stolen cheque-book and misused the same. However, both the aforesaid grievances never came to be probablised by leading cogent evidence in defence.
Neither accused by making reference to the pleadings and evidence adduced on record by the complainant was able to rebut the presumption that cheque was issued towards discharge of lawful liability nor he led any evidence. Even during proceedings of the instant case at hand, counsel representing petitioner was unable to point out anything from the complaint as well as evidence adduced on record by the complainant, suggestive of the fact, that cheque in question was issued as security or same was stolen by the complainant before presenting the same with the bank concerned.
16. There is nothing on record that after theft of cheque-book, if any, complaint was ever lodged by complainant or other family members, and as such, it can be safely concluded that aforesaid defence though was attempted to be taken frivolously, but same could not be probablised for the reasons as discussed hereinabove.
::: Downloaded on - 29/08/2024 20:29:44 :::CIS 1317. Though there is nothing on record to suggest that cheque in question was issued as security, but even if it is presumed that cheque in question was given as a .
security, such fact could not be the reason for Court below to reject the complaint because by now, it is is well settled that even cheque issued as a "security" can be presented for encashment, if amount for which security cheque was issued was not paid.
18. By now, it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. Hon'ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under:
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 14 cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions .
of N.I. Act would flow."
19. Having scanned entire evidence adduced on record by the complainant, this Court is convinced and satisfied that all the basic ingredients of Section 138 of Negotiable Instruments Act were duly met by the complainant before initiating proceedings. It stand duly proved on record that cheque in question was issued towards discharge of lawful liability by the accused, but same was dishonoured on account of "insufficient funds" in the bank account of accused.
20. Since despite having received legal notice, accused failed to make the payment good, coupled with the fact that he never replied to the contents of the legal notice, therefore, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be allowed on the basis of cogent and convincing evidence adduced on record by the complainant.
21. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-
::: Downloaded on - 29/08/2024 20:29:44 :::CIS 15appreciate the evidence, especially in view of the concurrent findings of fact and law relied upon 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 r 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."
22. Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based ::: Downloaded on - 29/08/2024 20:29:44 :::CIS 16 upon proper appreciation of evidence available on record and as such, same are upheld.
23. Accordingly, the present criminal 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.
Bail bonds of the petitioner are cancelled and discharged accordingly. Interim direction, if any, stands vacated.
Pending applications, if any, also stand disposed of.
24. The amount, if any, deposited with the Registry of this Court as well as learned trial Court is ordered to be released in favour of the complainant-
respondent, by remitting the same in its saving bank account, details whereof, shall be furnished by learned counsel for the respondent-complainant within a period of one week and for recovery of remaining amount, respondent-complainant may file appropriate proceedings in appropriate Court of law.
(Sandeep Sharma),
August 24, 2024 Judge
(Ankit)
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