Himachal Pradesh High Court
Tedhi Singh vs Narayan Dass on 11 September, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN HE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 129 of 2018
Date of Decision: 11.09.2018.
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Tedhi Singh .........Petitioner.
Versus
Narayan Dass ..........Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner: Mr. Nitin Khanna, Advocate,
For the respondent: Mr. Virender Singh Chauhan, Advocate.
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Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC., is directed against the judgment dated 11.4.2018, passed by the learned Sessions Judge, Kullu, H.P., in Criminal Appeal No.21 of 2014/21 of 2016, affirming the judgment/order of conviction dated 4.3.2014 and 6.3.2014, passed by the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, District Kullu, H.P., in Criminal case No. 642-1 of 2011, whereby the learned trial Court while holding petitioner-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 to pay compensation to the tune of ` 7,00,000/-
2. Fact as emerge from the record are that respondent- complainant preferred a complaint against the petitioner-accused, under 1 Whether reporters of the Local papers are allowed to see the judgment? ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 2 Section 138 of the Act, in the Court of learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, District Kullu, alleging therein that the petitioner-accused, who deals in the business of fruits during the fruit .
season, approached him with a request to advance him sum of Rs. 7.00 lac, to carry out his business smoothly on return basis. Complainant advanced a sum of Rs. 7 lac, to the accused with an assurance that money would be returned within a period of one week. Subsequently, in the last week of August, 2011, petitioner-accused issued a cheque amounting Rs. 7 lac, bearing No. 92536262 dated 14.10.2011, payable at Union Bank of India, Kullu Branch, in favour of the complainant, however, on presentation, same was returned by the bank concerned vide memo dated 14.10.2011, with an endorsement "insufficient funds". After having received aforesaid memo from the bank, complainant served the accused with legal notice dated 24.10.2011, calling upon him to make the payment good, but since he failed to make the payment within the stipulated period despite issuance of legal notice, respondent/complainant was compelled to initiate proceedings before the competent court of law under Section 138 of the Act.
3. Learned trial Court on the basis of material adduced on record by the respective parties held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, sentenced him as per the description given herein above.
4. Being aggrieved and dis-satisfied with the judgment of conviction recorded by the learned trial Court, the petitioner-accused preferred an appeal before the learned Sessions Judge, Kullu, H.P., which also came to be dismissed vide judgment dated 11.4.2018. In the aforesaid background, present petitioner-accused approached this Court ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 3 in the instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the courts below.
5. On 9.5.2018, this Court while suspending the substantive .
sentence imposed by the court below directed the accused to deposit 50 % of the fine/compensation amount, within a period of four weeks, but despite repeated opportunities, accused failed to deposit the amount and accordingly, this Court vide order dated 31.7.2018, ordered that in case, amount is not deposited within the period of two weeks, respondent complainant shall be at liberty to get the judgment of learned trial Court executed in accordance with law.
6. Today during the proceedings of the case, learned counsel representing the petitioner-accused stated that he has no instructions whatsoever, with regard to the compliance of earlier orders passed by this Court and as such, on the joint request of the learned counsel for the parties, this Court proceeded to decide the case at hand at pre- admission stage.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. Close scrutiny of evidence, be it ocular or documentary, adduced on record by the respective parties, nowhere persuade this Court to agree with the contention of learned counsel for the petitioner that impugned judgments passed by the courts below are not based upon the proper appreciation of evidence and as such, same deserves to be quashed and set-aside, rather this Court is of the view that courts below, have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere, especially, in view of the concurrent finding of fact and law, recorded by the courts below. ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 4 Bare perusal of evidence adduced on record by the respective parties, clearly suggests that accused was unable to prove that cheque in question was not issued by him in favour of the complainant and the .
same was mis-used.
9. Mr. Nitin Khana, learned counsel, representing the petitioner, while inviting attention of this Court, to the evidence available on record made a serious attempt to persuade this Court to agree with his contention that cheque in question was never issued by the accused towards discharge of his liability, rather complainant misused the cheque. He further contended that courts below have failed to appreciate that there is/ was no material placed on record by the complainant to prove his capacity to lend sum of Rs. 7 lac and as such, story put forth by him while moving application under Section 138 of the Act, ought to have been dismissed by the courts below being concocted. He further contended that since no specific evidence with regard to availability of fund is/ was filed by the complainant along with complaint filed under Section 138 of the Act, no presumption, if any, under Section 118 and 139 of the Act, could be drawn with regard to the existence of debt by the court below while holding the accused guilty of having committed offence punishable under Section 138 of the Act. He further contended that bare perusal of Section 139 of Act, suggests that mere raising assumption in favour of the holder of the cheque that same was issued for the discharge of the debt or liability is not sufficient, but in this regard, positive, cogent and convincing evidence is/was required to be led on record by the complainant to prove that he had sufficient funds to lend the same to the accused.
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10. Having gone through the pleadings evidence adduced on record by the respective parties, this Court does not see any force in the aforesaid arguments of learned counsel for the petitioner and as such, .
same deserve outright rejection. It is none of the case of the accused that he had not appended his signature on the cheque in question, rather defence taken by the accused is/was that he lost his cheque book and complainant mis-used the same. Since signature of the accused stands duly admitted, question which requires to be decided in the instant proceedings is that "whether courts below rightly arrived at conclusion that cheque in question was issued by the accused towards discharge of his legal liability in favour of the complainant and same was not mis-used by the complainant, is based upon proper appreciation of evidence or not.?"
11. Complainant with a view to prove the contents of his complaint, while examining himself as CW1, specifically deposed that in the month of August, 2011, accused approached him with request to lend some money for the business purpose. He further deposed that he advanced a sum of Rs. 7 lac to the accused, who in turn, assured that he would be returning the money with in a period of one week, whereafter he issued cheque in question. He further stated that on 14.10.2011, cheque was dishonored on its presentation with an endorsement "insufficient funds" vide memo Ext.PW1/C, whereafter he got served the accused with legal notice, postal receipt whereof is Ext.CW1/E. In cross- examination conducted on this witness, he specifically denied the suggestion put to him that cheque book of the accused was misplaced somewhere and there was one signed cheque with it. He also denied suggestion put to him that accused filled up the blank cheque. ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 6
12. Careful perusal of examination in chief and cross- examination conducted on this witness clearly suggests that the complainant specifically proved on record the averments contained in .
Section 138 of the Act and defence was not able to extract something contrary to what he stated in his examination in chief.
13. Petitioner-accused in his statement recorded under Section 313 Cr.PC., denied the case of the complainant in toto and claimed that he has been falsely implicated in the case. In support of his defence, he examined five witnesses. DW1 Bhag Chand Thakur, Assistant manager, HGB Sarwari, while producing statement of accounts of complainant Ext.DW1/A stated that this account has been closed by the complainant. DW2 Vijay Kumar also stated that there is no account of the complainant in PNB, Dhalpur. DW3 Shiv Chand, stated that there was no account of the complainant in SBI Branch , Kullu, in the year, 2004. DW4 Shiv Kant Mishra, Manager, ICICI Bank Dhalpur Kullu, also deposed that in the year, 2011, there was no account of the complainant in the bank. It is not understood that for what purpose, defendant examined aforesaid witnesses because none of these witnesses stated something with regard to the transaction in question. Cheque Ext.CW1/B was allegedly issued by the accused payable at Union Bank of India, Kullu Branch, against his account No. 92536262, but interestingly, none of the officials from the aforesaid bank came to be examined by the accused to prove the factum that he had ever intimated the bank concerned with regard to loss of cheque book.
14. DW5, Raghubir Singh, son of the accused, deposed that one signed cheque was with him, but he while coming to Kullu mis-placed the same somewhere. Interestingly, this witness deposed that when the ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 7 notice in the case at hand, was received by his father, he apprised him with regard to the mis-placing of the cheque. Though, in his examination in chief, he only mentioned that he lost one signed cheque .
of his father, but in his cross-examination claimed that there were many leaves in the cheque book, but only one was signed by his father. He also admitted that neither he had disclosed this fact to his father, nor to the bank manager. Though pattern of cross-examination conducted by the complainant (CW1) suggests that accused made an attempt to carve out a case that he had lost his cheque book, wherein there was one signed cheque and same was mis-used by the complainant, but as has been taken note herein above, aforesaid suggestion put forth to the complainant was specifically denied by the complainant. Similarly, there is nothing in the evidence of defence, from where it can be inferred that cheque in question was mis-used by the complainant, rather statement made by DW5 Raghubir Singh, is completely vague and rightly not relied upon by the court below while ascertaining the guilt of the accused. There is material contradiction in his statement with regard to number of leaves in the cheque book allegedly lost by him because in his examination in chief, he deposed that one signed cheque was with him, which he lost while coming to Kullu, whereas in his cross-examination, he claimed that there were many cheques in the cheque book, but only one was signed by his father. This witness neither stated/disclosed the date on which cheque book was misplaced nor he disclosed that why he failed to report the matter immediately to his father or to the police. Though, DW5, in his examination in chief stated that there was blank signed cheque, but no suggestion was put to the complainant that he ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 8 after having found the cheque in question filled up and misused the same against the accused.
15. Leaving everything aside, signature on the cheque never .
came to be disputed by the accused, rather same stands admitted. It is not in dispute that complainant after having received memo from the bank concerned served the accused with the legal notice, which was duly served upon him as is evident by postal receipts Ex.CW1/E. But there is no document adduced on record by the accused that he after having received legal notice, lodged report, if any, with the police station with regard to the misuse of the cheque, if any, by the complainant, rather as per own admission of DW5, factum with regard to the misplacement of cheque for the first time, came to the knowledge of the accused after receipt of notice in the complaint instituted by the complainant. There is no evidence to support the version put forth by the accused that cheque was misplaced, rather evidence available on record clearly proves that complainant successfully proved on record the liability of the accused under Section 138 of the Act.
16. 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 ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 9 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 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 ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 1 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."
.
17. It is quite apparent from the aforesaid exposition of law that presumption under Section 139 of the Act, is rebuttable. Accused can rebut the presumption under Section 139 of the Act, but the standard of proof for doing so is all preponderance of probabilities. Needless to say, accused with a view to rebut the presumption can establish a probable defence and can rely on the material submitted by the complainant. In the case at hand, accused has not been able to raise probable defence either by relying upon the documents/evidence adduced on record by the complainant or by leading cogent and convincing evidence to the effect that he had never issued cheque in favour of the complainant. Though, in the case at hand, respondent- accused made an endeavour to prove on record that since his cheque book was lost, complainant misused the signed cheque and falsely implicated him. But as has been discussed in detail hereinabove, there is no evidence on record to prove the aforesaid defence having been taken by the accused and as such, learned court below rightly held that statutory presumption under Section 139 of the Act is attracted in the present case in favour of the complainant.
18. Having carefully gone through the evidence adduced on record by the respective parties, this Court sees no reason to interference with the well reasoned judgments passed by the courts below, which otherwise are based upon the correct appreciation of evidence adduced on record by the respective parties. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 1 re-appreciate the evidence, especially, in view 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."
19. 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.
20. 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 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 Mr. Khanna learned counsel representing the accused failed to point out any material irregularity committed by the courts below while appreciating the ::: Downloaded on - 18/09/2018 22:57:31 :::HCHP 1 evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below.
21. 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, appears to be based upon proper appreciation of evidence available on record and as such, same are upheld. Present petition fails and dismissed accordingly. Order dated 13.10.2017, passed by this Court, whereby sentence imposed by the court below was suspended, is hereby vacated and the petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial court.
11th September, 2018 (Sandeep Sharma),
manjit Judge.
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