Himachal Pradesh High Court
Date Of Decision: 17.10.2024 vs Munish Chauhan on 17 October, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
1 2024:HHC:10009
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 318 of 2024
Date of Decision: 17.10.2024
_________________________________________________________________________
Surinder Kumar Negi .........Petitioner
Versus
Munish Chauhan .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Vipin Rajta, Advocate.
For the Respondent: Mr. Ajay Kumar Chauhan, 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 21.12.2023 passed by the learned Additional Sessions Judge, Rohru, District Shimla, H.P., in Criminal Appeal No. 96-R/10 of 2023, affirming the judgment of conviction and order of sentence dated 29.04.2023/11.05.2023, passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P. in Criminal Complaint No. 23-3 of 2021, whereby the learned 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 eight 2 2024:HHC:10009 months and pay compensation to the tune of Rs. 1,85,000/- to the respondent-complainant (hereinafter "complainant").
2. Precisely, the facts of the case, as emerge from the record are that complainant instituted a complaint under Section 138 of the Act before the competent Court of law, alleging therein that in the last week of August, 2020, accused purchased 160 Apple boxes from him @ Rs. 1,000/- per box, for total sale consideration of Rs. 1,60,000/-. With a view to discharge his liability, accused had issued post dated cheque bearing No. 003796 dated 21.11.2020 amounting to Rs. 1,60,000/- drawn on State Bank of India, Branch Rohru, HP, but aforesaid cheque on its presentation to the bank concerned was dishonoured on account of insufficient funds. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 17.12.2020, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 29.04.2023/11.05.2023, held the accused guilty of his having committed 3 2024:HHC:10009 offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned Court below, accused preferred an appeal before the learned Additional Sessions Judge, Rohru, District Shimla, H.P., but same was dismissed vide judgment dated 21.12.2023. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to set-aside the judgment of conviction and order of sentence recorded by the learned Court below.
5. Vide order dated 30.05.2024, this Court suspended the substantive sentence imposed by the learned trial Court subject to accused depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs. 40,000/- with one surety in the like amount within a period of four weeks, however, fact remains that despite repeated opportunities, aforesaid order was never came to be complied with. On 20.09.2024, learned counsel for the accused, on instructions of the accused, stated before this Court that on or before next date of hearing entire compensation amount awarded by the learned trial Court shall be paid, however fact remains that despite there being specific direction 4 2024:HHC:10009 neither accused has come present in Court nor he has deposited the entire compensation amount and as such, this Court has no option, but to decide the petition on its own merit.
6. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by learned Additional Sessions Judge, Rohru, District Shimla, H.P., whereby judgment of conviction and order of sentence recorded by the learned trial Court came to be upheld, this Court is not persuaded to agree with Mr. Vipin Rajta, learned counsel for the accused, that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere. Interestingly, in the case at hand, at no point of time, factum with regard to his having purchased Apple Crop from the complainant in the year 2020 never came to be disputed by the accused. He also admitted his having issued cheque Ext. CW1/D as well as signature thereupon. He attempted to carve out a case that though he was liable to pay outstanding amount of Rs. 60-70,000/-, but he never issued cheque amounting to Rs. 1,60,000/-. In his statement under Section 313 5 2024:HHC:10009 Cr.P.C, though accused denied the case of complainant in toto, but as has been taken note hereinabove, he never disputed factum with regard to his having issued cheque as well as signature thereupon and as such, no illegality can be said to have been committed by the learned Courts below, while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused is required to raise probable defence.
7. In the instant case, accused with a view to probablize his defence that he had no liability to pay sum of Rs. 1,60,000/- to the complainant, though examined himself as DW1, but he failed to rebut the presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. In his cross-examination, he specifically admitted that in the year 2009-10 he had purchased apples from the complainant, but he cannot spell out his number. He also admitted that he had issued cheque Ext. CW1/B, but claimed that he had not filled it. He deposed that as per calculation, there is an outstanding amount of Rs. 60-70,000/-. Most importantly, in his cross-examination, he 6 2024:HHC:10009 feigned ignorance to the fact he had made payment to the complainant qua the apple crop that had been purchased by him in the year 2008-09. Since accused never disputed factum with regard to his having issued cheque as well as signature thereupon, he cannot claim that he had issued blank cheque. Even if it is presumed that accused had issued blank cheque in favour of the complainant, even that may not be of much help to the accused, especially when, he has not denied factum of his having purchased apple from the complainant as well as his liability to pay outstanding amount of Rs. 60-70,000/-. Though accused admitted that he had issued cheque in question, but he feigned ignorance about the fact that whether he had made payment for the apple purchased in the year 2020, but no positive evidence to that effect ever came to be led on record.
8. 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 is able to contest existence 7 2024:HHC:10009 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 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
8 2024:HHC:10009 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 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."
9 2024:HHC:10009
9. Complainant with a view to prove his case, examined himself as CW-1 and tendered his evidence by way of affidavit Ext. CW1/A, thereby reiterating the contents of complaint. He successfully proved on record factum with regard to issuance of cheque Ext.CW1/B and its presentation before the bank concerned, which subsequently vide dishonour memo Ext.CW1/C returned the cheque on account of insufficient funds in the bank account of the accused. Complainant also successfully proved on record that prior to institute the complaint under Section 138 of the Act, he had served accused with a legal notice on correct address as is evident from postal receipt Ext.CW1/E as well as track consignment Ext.CW1/G. Complainant successfully proved on record that though legal notice was served upon accused on correct address, but same was returned back through registered letter Ext. CW1/F, as door of the house of the accused was found to be locked. Since despite receipt of legal notice, accused failed to make the payment good, he had no option, but to institute the complaint under Section 138 of the Act.
10. 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 10 2024:HHC:10009 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."
11. 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 11 2024:HHC:10009 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 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.
12. Having scanned pleadings as well as evidence adduced on record by the complainant, this court finds that complainant successfully proved all the ingredients of Section 138 of the Act. Similarly, factum with regard to issuance of cheque by the accused towards discharge of lawful liability stands duly established on record.
13. 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 12 2024:HHC:10009 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."
14. 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 committed by the Courts below while appreciating the evidence and as such, this Court sees no 13 2024:HHC:10009 reason to interfere with the well reasoned judgments passed by the Courts below.
15. 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 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.
16. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The accused is directed to surrender before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.
17. Sum of Rs. 37,000/- deposited by the accused with the learned trial Court is ordered to be released in favour of complainant by remitting the same in his bank account, detail whereof, shall be furnished within a period of one week. Needless to say, complainant shall be at liberty to file appropriate proceedings for recovery of balance amount, if any.
October 17, 2024 (Sandeep Sharma),
(sunil) Judge
Digitally signed by VIKRANT CHANDEL
Date: 2024.10.21 17:36:01 IST