Himachal Pradesh High Court
Date Of Decision: 19.09.2024 vs Pratap Chauhan on 19 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8924
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.38 of 2024
Date of Decision: 19.09.2024
__________________________________________________________________________
.
Prakash Chandel .........Petitioner
Versus
Pratap Chauhan .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Ajay Singh Kashyap, Advocate.
For the Respondent: Mr. Guna Nand Verma. Advocate.
__________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 read with Section 401 Cr.P.C., lays challenge to judgment dated 06.10.2023, passed by the learned Additional Sessions Judge-II, Shimla, District Shimla, Himachal Pradesh, Camp at Theog, in Criminal Appeal No.85/2023, titled Prakash Chandel Vs. Pratap Chauhan, affirming judgment of conviction and order of sentence dated 17.04.2023/18.04.2023, passed by the learned Additional Chief Judicial Magistrate, Theog, Shimla, Himachal Pradesh, in Criminal Case No.86-3 of 2016, whereby the learned trial Court 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.6,00,000/- to the respondent-complainant.
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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, in the competent Court of law, alleging therein that he had sold apple boxes to the accused in the month of September, 2015 for a consideration of Rs.3,00,000/-. Accused with a view to discharge his liability, issued Cheque bearing No.767358 dated 01.10.2015, amounting to Rs.3,00,000/- (Ex.C-2/CW-1), drawn on SBI Bank, Baghi Branch, Kotkhai, Shimla, Himachal Pradesh, however, on presentation of aforesaid Cheque to the Bank concerned, the same was dishonoured with the remarks "Insufficient Funds". After receipt of aforesaid return memo (Ex.C-3/CW-1), complainant served accused with a legal notice vide Ex.C-4/CW-1 through registered post, postal receipt whereof is Ex.C-5/CW-1. Since accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Theog, Shimla, Himachal Pradesh.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 17.04.2023/18.04.2023, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.
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4. Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge-II, Shimla, District Shimla, .
Himachal Pradesh, Camp at Theog, however, same was dismissed vide judgment dated 06.10.2023. In the aforesaid background, accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.
5. Vide order dated 12.01.2024, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 20% of the compensation amount awarded by learned Court below, within a period of four weeks and furnishing personal bonds in the sum of Rs.30,000/-. Though aforesaid order was complied with by the petitioner, but thereafter, he repeatedly prayed for time to deposit the remaining amount. Having noticed intention of the petitioner to settle the matter with the complainant, this Court repeatedly adjourned the matter, but in vain.
6. On 28.08.2024, accused came present before this Court and stated that entire amount of compensation awarded by learned Court below shall be paid within a period of two weeks, as such, this Court adjourned the matter for today's date with the direction to parties to come present.
Though, respondent/complainant has come present, but petitioner/accused has not come present. Neither amount has been ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 4 deposited, nor petitioner has imparted instructions to his counsel, as such, this Court is compelled to decide the petition on its own merits.
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7. Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Ajay Singh Kashyap, learned counsel representing the petitioner that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.
8. Though, Mr. Ajay Singh Kashyap, learned counsel representing the petitioner, while making this Court peruse evidence adduced on record, attempted to argue that both the Courts below failed to appreciate the evidence in its right perspective, but such submission of his deserves outright rejection, being contrary to the record. Interestingly, in the case at hand, at no point of time, factum of issuance of Cheque as well as his signatures thereupon ever came to be refuted by the petitioner, rather, he attempted to carve out a case that consignment of apple was not sold to him, but to some EVM Company, Gujarat and Cheque issued by him as a security has been misused. Since factum of Cheque as well as his signatures thereupon never came to be refuted by the accused, both the Courts below rightly invoked Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 5 issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either .
can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any.
However, in the instant case, though accused attempted to carve out a case that consignment of apple was never sold to him, but same was sold to EVM Company, Gujarat and Cheque issued by him as a security has been misused, however, afore defence never came to be probablized by leading cogent and convincing evidence.
9. 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 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 ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 6 139 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 ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 7 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 rwithin 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."
10. In the case at hand, complainant in order to prove his case examined himself as CW-1. He filed affidavit Ex.C-1/CW-1, reiterating therein averments contained in the complaint. He successfully proved on ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 8 record Cheque (Ex.C-2/CW-1), return memo (Ex.C-3/CW-1), legal notice (Ex.C-4/CW-1) and postal receipt (Ex.C-5/CW-1). Complainant successfully .
proved on record that he had sold boxes of apple to the accused for a consideration of Rs.3,00,000/- and accused with a view to discharge his liability, though issued Cheque amounting to Rs.3,00,000/-, but same was dishonoured on presentation to the bank concerned vide memo Ex.C-3/CW-1. Complainant also successfully proved on record that before initiating proceedings under Section 138 of the Act, he served accused with legal notice dated 09.12.2015 through registered post, which was served upon his address on 11.12.2015, but yet accused failed to repay the amount, as such, he had no option but to institute proceedings under Section 138 of the Act. If cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that accused was unable to extract something contrary to what this witness stated in examination-
in-chief. Though, while putting in suggestion to the complainant, accused attempted to carve out a case that consignment of apple was never sold to the him, but to EVM Company, Gujarat and he had issued blank Cheque as a security, which was subsequently misused by the complainant, but aforesaid suggestion was specifically denied by the complainant. By putting aforesaid suggestion, accused himself established factum of issuing Cheque as well as his signatures thereupon, however, no cogent and convincing evidence ever came to be led on record at his behest, despite giving ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 9 sufficient opportunity to prove that he had no liability to discharge and Cheque in question issued as a security Cheque was misused. Similarly, no .
evidence ever came to be led on record that consignment of apple was not sold to him but to some company, as detailed hereinabove. In his statement recorded under Section 313 Cr.P.C., accused nowhere disputed factum of his having issued Cheque as well as his signatures thereupon, but as has been observed hereinabove, he attempted to carve out a case that consignment of apple was sold to EVM Company, Gujarat, but aforesaid defence put forth by the accused never came to be probabilized, because despite there being sufficient opportunity, accused failed to lead evidence.
11. Since factum of issuance of Cheque as well as his signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused of his having committed offence punishable under Section 138 of the Act. Accused was unable to adduce any evidence on record, be it oral or documentary, to suggest that Cheque issued by him was issued towards 'security' and same was misused. Otherwise also, Cheque, if any, as security can also be presented for encashment, if amount taken or promised to be repaid is not paid.
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12. 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 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."
13. Needless to say, expression "Security cheque" is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a "security cheque" to say that a complaint in respect of such a cheque would ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 11 not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 .
of the Act in case of its dishonour.
14. Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.
15. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate 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 ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 12 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."
16. 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, there is no occasion, whatsoever, to exercise the revisional power.
17. 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 learned counsel representing the accused has failed to point out any material irregularity ::: Downloaded on - 23/09/2024 20:29:57 :::CIS 2024:HHC:8924 13 committed by the Courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned .
judgments passed by the Courts below.
18. 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 upon proper appreciation of evidence available on record and as such, same are upheld.
19. 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.
(Sandeep Sharma), Judge September 19, 2024 (Rajeev Raturi) ::: Downloaded on - 23/09/2024 20:29:57 :::CIS