Himachal Pradesh High Court
Sh. Chaman Lal S/O Sh. Budh Ram Mahat vs Sh.Budhi Singh S/O Late Sh. Nanak Chand ... on 28 October, 2016
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Crl. Revision Petition No. 196/2015
Order Reserved on 26.09.2016
Date of order: 28.10.2016
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Sh. Chaman Lal s/o Sh. Budh Ram Mahat ....Revisionist/Convict
Versus
Sh.Budhi Singh s/o late Sh. Nanak Chand ....Non-revisionist/Complainant
Coram:
of
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting?1 Yes
rt
For revisionist : None
For non-revisionist : Mr. Naveen K. Bhardwaj, Advocate
P. S. Rana, J.
Order:
Present criminal revision petition is filed under sections 397 and 401 Code of Criminal Procedure 1973 against judgment dated 12.05.2015 passed by learned Sessions Judge Kullu (H.P.) in criminal appeal No.05 of 2014 title Chaman Lal Vs. Budhi Singh whereby learned Sessions Judge Kullu dismissed the appeal of revisionist filed against judgment and sentence of learned Trial Court. On date of final hearing none appeared on behalf of revisionist. Learned Advocate appearing on behalf of non-revisionist submitted that learned Advocate appearing on behalf of revisionist sought many adjournments for final hearing 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 2 and present case be disposed of on merits. Case listed for final hearing on 24.12.2015, 16.03.2016, 29.04.2016, 29.06.2016 and 26.09.2016. Court decided to dispose of revision petition on merits.
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Execution of sentence passed by learned Trial Court suspended by High Court till disposal of criminal revision petition.
Brief facts of the case:
2. Sh. Budhi Singh complainant filed complaint under section 138 of of Negotiable Instruments Act 1881. There is recital in the complaint that complainant and accused are well known to each other and were having good friendly relations. There is further recital in the complaint that in the rt month of May 2010 revisionist was in dire need of money for construction of his house and revisionist approached the complainant and borrowed a sum of Rs.5 lac in presence of witnesses and assured that he would refund the amount within 3-4 months. There is further recital in the complaint that on dated 21.2.2011 complainant demanded back borrowed money from revisionist but revisionist in order to discharge his antecedent liability issued cheque No.460721 dated 21.2.2011 amounting to Rs.5 lac in favour of complainant. There is further recital in complaint that complainant presented the cheque before the bank but the cheque was dishonoured on account of insufficient fund. There is further recital in the complaint that demand notice was issued to revisionist but despite it revisionist did not pay the amount due. Prayer for conviction of revisionist under section 138 of Negotiable Instruments Act 1881 sought.::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 3
3. Learned Trial Court recorded preliminary evidence of complainant and thereafter learned Trial Court held that there are sufficient prima facie grounds to proceed against revisionist for offence punishable under section .
138 of Negotiable Instruments Act 1881. Thereafter notice was issued to revisionist by learned Trial Court. Thereafter on 5.12.2012 learned Trial Court issued notice of accusation under section 251 Cr.PC to revisionist for offence punishable under section 138 of Negotiable Instruments Act of 1881. Complainant examined two witnesses and revisionist examined one witness. Documentaries evidence also placed on record. On dated 27.11.2013 learned Trial Court convicted the revisionist under section 138 rt of Negotiable Instruments Act 1881 and sentenced the convict to undergo simple imprisonment for a period of one year. Learned Trial Court also directed the revisionist to pay a sum of Rs.6 lac to complainant. Feeling aggrieved against the judgment and sentence passed by learned Trial Court revisionist filed appeal before learned Sessions Judge Kullu (H.P.) and learned Sessions Judge Kullu (H.P.) dismissed the appeal filed by revisionist on dated 12.5.2015 and affirmed the judgment and sentence passed by learned Trial Court. Feeling aggrieved against the judgment and sentence passed by learned Trial Court and affirmed by learned First Appellate Court revisionist filed the present criminal revision petition.
4. Court perused entire plea pleaded by revisionist in revision petition and Court heard learned Advocate appearing on behalf of non-
revisionist and Court also perused the entire record carefully.
::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 45. Following points arise for determination:
1) Whether criminal revision petition filed by revisionist under section 397 and 401 Code of Criminal Procedure .
1973 is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2) Final Order.
Findings upon Point No.1 with reasons:
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6. CW-1 Sh. Puran Chand Assistant Clerk State Bank of India Manali has sated that he is posted in State Bank of India Manali since 2009 and he rt has brought the record relating to cheque No.460721 dated 21.2.2011. He has stated that cheque was issued by Sh. Chaman Lal revisionist. He has stated that record relating to issuance of cheque book is Ext.CW1/A. He has stated that account statement is Ext.CW1/B. He has stated that both documents are attested by Branch Manager. He has stated that cheque was dealt with clearing house.
7. CW-2 Sh. Budhi Singh in examination-in-chief has tendered in evidence affidavit Ext.CW2/A, cheque Ext.CW2/B, forwarding letter issued by Uco Bank Ext.CW2/C, memo of dishonour of cheque Ext.CW2/D, notice of demand Ext.CW2/E and postal receipt Ext.CW2/F. There is recital in the affidavit that complainant Budhi Singh and revisionist are well known to each other and revisionist was having good friendly relations with complainant. There is also recital in the affidavit that in the month of May 2010 revisionist was in dire need of money for construction of his house ::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 5 and revisionist approached the complainant and borrowed a sum of Rs.5 lac in presence of witnesses and assured to refund the amount within 3-4 months. There is further recital in the affidavit that on 21.2.2011 .
complainant demanded back borrowed money from revisionist but revisionist in order to discharge his antecedent liability issued cheque No.460721 dated 21.2.2011 and thereafter he presented the said cheque before the bank but cheque was dishonoured with the remarks "insufficient of funds" in the account of revisionist. There is further recital in the affidavit that revisionist was served with demand notice dated 17.3.2011 but despite demand notice revisionist did not pay the amount due. There is further rt recital in the affidavit that revisionist was not having sufficient fund in his account. CW2 has denied suggestion that he did not give money to revisionist. CW2 has denied suggestion that revisionist has not issued cheque Ext.CW2/B. CW2 has denied suggestion that cheque was given to Sh. Parma Nand. CW2 has denied suggestion that false case has been filed against revisionist.
8. Statement of revisionist recorded under section 313 Code of Criminal Procedure 1973. Revisionist has stated that he issued cheque to Sh. Parma Nand with whom sale transaction was under process.
9. Revisionist also adduced DW-1 Sh. Bal Krishan as defence evidence. DW-1 Sh. Bal Krishan Manager Uco Bank Kullu has stated that he is posted in the bank since 2012 and he has brought the summoned record.
He has stated that statement of account of Sh. Budhi Singh is Ext.DW1/A. ::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 6 He has stated that there was amount of Rs.67,707/- (Sixty seven thousand seven hundred seven) in the account of Sh. Budhi Singh. In cross-
examination he has admitted that on 6.1.2009 there was amount of .
Rs.1,10,000/- (One lac ten thousand) in the account of Sh. Budhi Singh. He has stated that on 14.3.2011 an amount of Rs.5,21,158/- (Five lac twenty one thousand one hundred fifty eight) were deposited.
10. Following documentaries evidence tendered by parties: (1) of Ext.CW1/A is cheque book record of Chaman Lal (2) Ext.CW1/B is statement of account of Sh. Chaman Lal (3) Ext.CW2/B is cheque to the tune of Rs.5 lac dated 21.2.2011 issued in favour of Budhi Singh by rt revisionist. (4) Ext.CW2/C is forwarding letter of UCO Bank Kullu (5) Ext.CW2/D is memo relating to dishonour of cheque on account of insufficient funds. (6) Ext.CW2/E is demand legal notice given by complainant to revisionist (7) Ext.CW2/F is postal receipt (8) Ext.DW1/A is statement of account of complainant.
11. Plea of revisionist in revision petition that cheque was issued to Sh. Parma Nand because he intended to purchase land from Sh. Parma Nand and on this ground revision petition be accepted is rejected being devoid of any force for reasons hereinafter mentioned. Revisionist did not examine Sh.Parma Nand in the Court in order to prove that cheque in dispute was given to Sh.Parma Nand. Sole testimony of revisionist is not sufficient to hold that cheque was given to Sh.Parma Nand. Court has carefully perused the cheque Ext.CW2/B placed on record. Cheque ::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 7 Ext.CW2/B is issued in the name of Sh.Budhi Singh complainant in consideration amount of Rs.5 lac on dated 21.2.2011 and is signed by revisionist. As per section 139 of Negotiable Instruments Act 1881 there is .
presumption in favour of holder of the cheque. Revisionist did not adduce any positive cogent and reliable independent evidence on record in order to rebut the presumption. See AIR 2000 SC 145 title Anil Handa Vs. Indian Acrylic Ltd.
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12. Plea of revisionist in revision petition that learned Trial Court and learned First Appellate Court have not properly appreciated oral as well as documentaries evidence placed on record and judgments are perverse and rt based upon non-appreciation of oral as well as documentaries evidence is also rejected being devoid of any force for reasons hereinafter mentioned.
Court has carefully perused the judgments passed by learned Trial Court and affirmed by learned First Appellate Court. Learned Trial Court and learned First Appellate Court have properly appreciated oral as well as documentaries evidence placed on record with reliable reasons. Offence under section 138 of Negotiable Instruments Act 1881 is completed when following facts are proved: (1) Issuance of cheque (2) Presentation of cheque before bank (3) Return of cheque unpaid on account of insufficient fund (4) Giving notice in writing to accused demanding payment of cheque amount (5) Failure of accused to make payment within 15 days of demand notice. It is held that above stated facts are sine qua non for completion of offence under section 138 of Negotiable Instruments Act 1881. In the ::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 8 present case all the ingredients are proved against revisionist beyond reasonable doubt.
13. Revisionist has not disputed his signatures upon cheque .
Ext.CW2/B. It is well settled law that when signatures admitted upon cheque then presumption of debt in favour of holder of cheque is arises.
See AIR 2016 SC 4363 title Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Ltd.
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14. Plea of revisionist in revision petition that judgments passed by learned Trial Court and affirmed by learned First Appellate Court are perverse ipso facto and on this ground revision petition be accepted is also rt rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that High Court can interfere in revision petition only when following factors are established: (1) Where decision is grossly erroneous (2) Where there is no compliance of provision of law (3) Where finding of fact is not based upon evidence (4) Where material evidence of parties is not considered (5) Where judicial discretion is exercised arbitrarily or perversely. See AIR 1968 SC 707 title Mahendra Pratap Singh Vs. Sarju Singh. See AIR 1962 SC 1788 title Chinnaswamy Reddy Vs. State of Andhra Pradesh. Above stated facts are not established by revisionist in accordance with law. Even as per section 118 of Negotiable Instruments Act 1881 there is presumption unless contrary is proved relating to (1) Consideration (2) Date (3) Time of acceptance (4) Time of transfer (5) Order of endorsements (6) Stamps (7) Holder is holder in due course.
::: Downloaded on - 15/04/2017 21:27:29 :::HCHP 9Section 118 of Negotiable Instruments Act 1881 lays special rule of evidence applicable to Negotiable Instruments Act 1881 and presumption is one of law as per section 118 of Negotiable Instruments Act 1881. Courts .
are under legal obligation to presume presumptions as mentioned under section 118 of the Act unless contrary is proved. In the present case revisionist did not rebut presumption as mentioned under section 118 of Negotiable Instruments Act 1881. Simple statement of revisionist under of section 313 Cr.PC is not sufficient to rebut presumption of section 118 of Negotiable Instruments Act 1881. In view of above stated facts point No.1 is answered in negative.
rt Point No.2 (Final Order).
15. In view of findings upon point No.1 present criminal revision petition is dismissed. Judgment and sentence passed by learned Trial Court and affirmed by learned First Appellate Court are affirmed. Records of learned Trial Court and learned First Appellate Court be sent back forthwith alongwith certified copy of the order. Crl. Revision No.196/2015 is disposed of. Pending applications if any also disposed of.
October 28, 2016 (P. S. Rana),
(rana) Judge.
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