Himachal Pradesh High Court
Bhajan Dass vs State Bank Of India on 23 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Revision No. 15 of 2021
Decided on: November 23, 2022
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Bhajan Dass ...........Petitioner
Versus
State Bank of India ....Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.
For the Petitioner : Mr. Rajeshwar Thakur, Advocate.
For the Respondent : Mr. Arvind Sharma, Advocate.
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Sandeep Sharma, Judge (oral):
Instant criminal revision petition filed under S. 397 /401 CrPC, lays challenge to judgment dated 21.12.2020 passed by learned Sessions Judge (Forests), Shimla, Himachal Pradesh in Cr. Appeal No. 30/2019, affirming the judgment of conviction and order of sentence dated 8.5.2019 passed by learned Additional Chief Judicial Magistrate Court NO., Rohru, District Shimla, Himachal Pradesh in Cr. Case No. 151-3 of 2018, titled State Bank of India v. Bhajan Dass, whereby learned trial Court, while holding the petitioner-accused (hereinafter, 'accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') convicted and sentenced him to undergo simple imprisonment for a period of one year and pay Rs. 7,60,000/- as compensation to the respondent/complainant (hereinafter, 'complainant') in lieu of cheque amount.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 24/11/2022 20:32:44 :::CIS 22. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted proceedings under S. 138 of the Act in .
the court of learned Additional Chief Judicial Magistrate, Rohru, alleging therein that the accused issued cheque bearing No. 460807 dated 30.12.2007 amounting to Rs. 6,05,976.69 in favour of the complainant to discharge his legally enforceable debt but said cheque on its presentation was dishonoured on account of insufficient funds.
Since despite issuance of legal notice dated 7.3.2018, the accused failed to make good the payment within the time stipulated in the legal notice, complainant had no option but to institute proceedings under S. 138 of the Act.
3. Learned trial Court on the basis of evidence adduced on record by respective parties, held the accused guilty of having committed offence punishable under S.138 and convicted and sentenced him as per description given herein above. Being aggrieved and dissatisfied with judgment of conviction and order of sentence passed by learned trial Court, accused filed an appeal before learned Sessions Judge, (Forests), Shimla but the same was dismissed vide judgment dated 21.12.2020. in the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal, after setting aside judgment of conviction and order of sentence recorded by learned courts below.
4. Vide order dated 20.1.2021, this court suspended substantive sentenced imposed by learned trial Court subject to the accused furnishing personal bonds in the sum of Rs. 25,000/- in favour of Chief ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 3 Judicial Magistrate, Shimla. However, fact remains that said order never came to be complied with despite repeated opportunities. On .
5.4.2021, this court having taken note of continuous default on the part of accused to comply with order dated 20.1.2021 vacated interim protection granted in favour of the accused.
5. On 2.2.2022, accused filed application under S.389 CrPC for suspension of sentence and his prayer was accepted subject to depositing 50% of cheque amount and furnishing bonds in the sum of Rs. 20,000/- with on surety in the like amount, however, facts remains that said orders was never complied with, as such, this court has no option but to decide the petition on merit.
6. Learned counsel for the petitioner, vehemently argued that the judgment passed by first appellate court upholding judgment of conviction and order of sentence recorded by learned trial Court is not sustainable in the eye of law as the same is not based upon proper appreciation of facts and evidence led on record by the parties.
However, having perused entire material available on record, especially evidence brought on record by the complainant in support of its claim, this court has no hesitation to conclude that the judgments of conviction and order of sentence passed by learned Courts below are based upon proper appreciation of facts and evidence led on record by parties.
7. In the instant case, complainant filed complaint under S. 138 of the Act, alleging therein that accused had issued cheque Exhibit C2 dated 30.12.2017 amounting to Rs.6,05,976.69 in its favour in lieu of ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 4 discharge of legally enforceable debt, but the same was dishonoured on account of insufficient funds in the account of the accused vide .
memo dated 5.3.2018, Exhibit C3. Complainant though issued legal notice dated 7.3.2018 Exhibit C4, on correct address of the accused but it was not received back. To prove service of legal notice upon the accused, complainant also placed on record postal receipt Exhibit C5.
8. In the instant case, complainant bank examined CW-1 Shyam Sunder Solanki, Manager, to prove contents of the complaint. This witness, while submitting his evidence by way of affidavit, Ext. CW-1/A, successfully proved contents of the complaint. This witness also tendered in evidence, his posting orders, Ext. C1, dishonoured cheque Ext. C2, return memo Ext. C3, Legal Notice, Ext. C4 and postal receipt, Ext. C5. Cross-examination conducted upon this witness nowhere suggests that the accused was able to extract anything contrary from this witness, to what he stated in his examination-in-chief.
9. Though, accused was afforded due opportunity to lead evidence in his defence, but he failed to do so. In his statement recorded under S.313 CrPC, he claimed himself to be innocent but no plausible explanation ever came to be rendered on record qua the fact that in case he had not issued cheque to the complainant bank in discharge of his liability, how the cheque came into possession of bank authorities.
Since the cheque in question came to be dishonored on account of insufficient funds, and there is no dispute if any, qua the signatures of accused on the same, there is presumption in favour of the ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 5 complainant i.e. holder of cheque that the cheque was issued in discharge of legally enforceable debt.
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10. Ss. 118 and 139 of the Act clearly speak about presumption in favour holder of cheque. Though such presumption is rebuttable but for that purpose, accused is required to lead positive evidence in this regard or refer to the evidence be it ocular or documentary led on record by the complainant. Pattern of cross-examination conducted upon the complainant by the counsel for the accused though suggests that the accused attempted to carve out a case that he issued cheque as security but same was misused however, such defence set up by the accused never came to be probabilized.
11. 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 ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 6 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 r 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 ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 7 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 r 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."
12. CW-1 in his cross-examination stated that the accused had issued the cheque for repayment of his loan. This witness stated that earlier Manager had told him that the cheque had been filled in by the accused. This witness further deposed that the amount of liability against the accused till date was Rs.6,30,000/-. This witness while fairly admitting that he had not brought the statement of account of the accused denied the suggestion that the accused is not liable to pay the cheque amount.
13. Defence of accused is that the cheque has been misused but he has miserably failed to explain that how and in what manner cheque ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 8 came in possession of the complainant and how it was misused by the complainant Bank.
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14. Interestingly, the accused, while cross examining CW-1 nowhere disputed his signatures on Ext. C2 nor he denied the contents thereof and amount mentioned therein i.e. Rs. 6,05,976.69 or claimed the same to be wrongly filled in. Moreover, cheque in question is payable in favour of Bhajan Dass House Loan account No. 65248317195 and as such, there is a presumption that the cheque in question was issued by the accused in favour of the complainant in discharge of his loan liability. Save and except bald allegation that the cheque has been misused by complainant bank, no concrete evidence ever came to be led on record by the accused to rebut the presumption that the cheque in question was issued by him to the complainant bank towards discharge of lawful liability. Accused was not able to elicit that Ext. C2 has been misused or is without consideration. CW-1 deposed that the accused had liability of Rs.6,30,000 to the complainant bank.
Moreover, legal notice issued by the complainant though is claimed not to have been served but since same was not received back undelivered, there is presumption tithe the same was received by the accused. Since despite receipt of legal notice, the accused failed to make payment, no illegality can be said to have been committed by learned courts below while holding the accused guilty of having committed offence punishable under S. 138
15. In the case at hand, complainant successfully proved all the ingredients of S. 138 and as such, learned courts below had no option ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 9 but to pass the judgments of conviction and order of sentence, which have been challenged in the instant proceedings.
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16. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to 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."
17. 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.
18. 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 ::: Downloaded on - 24/11/2022 20:32:44 :::CIS 10 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. Singh, learned counsel representing the accused has failed to point out any material irregularity 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.
19. Consequently, in view of above, I find no merit in the present petition and same is dismissed. Judgments of conviction and order of sentence passed by learned Courts below are upheld. Petition stands disposed of alongwith all pending applications. Bail bonds furnished by the accused are cancelled. He is directed to surrender to the learned trial Court to serve the sentence imposed upon him, forthwith.
(Sandeep Sharma) Judge November 23, 2022 (vikrant) ::: Downloaded on - 24/11/2022 20:32:44 :::CIS