Punjab-Haryana High Court
The Hisar Bankman Cooperative Thrift ... vs Krishan Kumar Son Of Sewan Ram on 5 September, 2012
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No.336-MA of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.336-MA of 2010
Date of Decision: 05 .09.2012
The Hisar Bankman Cooperative Thrift and Credit Society Limited
....Applicant
Versus
Krishan Kumar son of Sewan Ram ....Respondent
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Tara Chand Dhanwal, Advocate
for the applicant-appellant.
Mr. Vivek Khatri, Advocate
for the respondent.
*****
DAYA CHAUDHARY, J.
This is an application under Section 378(4) Cr.P.C for grant of leave to appeal to challenge the judgment of acquittal dated 09.12.2009 passed by the Chief Judicial Magistrate, Hisar in complaint filed by the applicant under Section 138 of the Negotiable Instrument Act.
Briefly, the facts of the case are that respondent Krishan Kumar obtained a loan of Rs.45,000/- from the applicant-Society by executing an agreement and an undertaking from his employer to recover and deduct the amount in monthly instalments along with interest to be calculated at half yearly rests. Subsequently, the respondent did not adhere to repayment of the instalments of the Society and violated the terms and conditions of the agreement. The cheque issued by the respondent was presented for encashment and same got dishonoured. A complaint was filed by the complainant-Society and vide judgment dated 09.12.2009 passed by the Chief Judicial Magistrate, Hisar, the same was dismissed and the respondent was acquitted of the charge. The present Crl. Misc. No.336-MA of 2010 2 application under Section 378(4) Cr.P.C has been filed for grant of leave to file appeal on the ground that the respondent was acquitted of the charge by erroneous finding and without proper appreciation of evidence. The applicant-Society served a legal notice before filing of the complaint but the respondent choose not to file any reply within the prescribed period and simply denied the allegations as per his statement under Section 313 Cr.P.C taken during trial.
Learned counsel for the applicant also submits that as per terms and conditions of the agreement, the respondent submitted some cheques and those cheques could have been used and the cheques were used by the applicant as per terms and conditions of the agreement. Hence, the ingredients of Section 138 of the Negotiable Instruments Act have been complied with and still, the respondent has been acquitted of all the charges.
Learned counsel for the respondent submits that the cheques, in dispute, were given to the applicant-Society as a security and the signatures on the cheques were proved but the handwriting upon the cheques was not proved. A categorical finding has been recorded by the trial Court and case against the respondent could not be proved. Hence, the complaint had rightly been dismissed.
I have heard the arguments of learned counsel for the parties and have also gone through the judgment of the trial Court, as well as, other documents on file.
Admittedly, the loan was sanctioned in favour of the respondent and there was an agreement between the applicant- complainant. As per the agreement, the respondent was to re-pay the loan amount in monthly instalments from his salary. As per allegations in the complaint, the respondent issued an account payee cheque bearing Crl. Misc. No.336-MA of 2010 3 No.310981 of State Bank of India, Hisar dated 19.07.2002 for a sum of Rs.47,000/- from his Saving Bank Account No.57179. On presentation of the said cheque before the Bank, it was dishonoured and was returned with the remarks "insufficient funds." A legal notice was also served upon the respondent by the applicant-complainant. Complaint was filed. After recording statement of both sides, the Chief Judicial Magistrate, Hisar vide judgment dated 09.12.2009 acquitted the respondent from the charges on the ground that blank cheque which was given as security to the complainant was written with different shaded writing instruments of different colour which was also not found in the handwriting of the respondent. The case against the respondent could not be proved beyond reasonable doubt and he was acquitted of the charge. The trial Court also observed that the loan amount was Rs.50,000/- and was released on three different dates which was to be repaid in 45 monthly instalments of Rs.1500/- each. The cheque was stated to have been issued for an amount of Rs.47,000/-, whereas, the respondent made a payment of Rs.30,700/- upto 15.07.2001. The legal notice amounting to Rs.45,000/- was given and the total amount mentioned in the legal notice was Rs.35,000/-. There was contradiction of the amount in the legal notice, in the complaint and the agreement executed between the parties. It was also proved on record that writing on the cheque was also embossed in different colour ink from the signature of the respondent. After recording these findings by the trial Court, no offence was made out under Section 138 of the Negotiable Instrument Act and the respondent was acquitted of the charge.
Learned counsel for the applicant is not in a position to show any document from the file as to why different amount was mentioned in the complaint, legal notice and in the cheque. The handwriting upon the Crl. Misc. No.336-MA of 2010 4 cheque was in different coloured ink has also not been denied. During the course of argument, the complainant did not produce any books of account or register maintained in the course of regular business as per Section 34 of the Evidence Act.
In the judgment titled as Gurnam Singh v. Prabh Dayal Saini reported as 2008(4) RCR (Criminal) 972, the complaint was dismissed by relying on the judgment of Hon'ble the Supreme Court in the case titled as Suman Sethi v. Ajay K. Churiwal and another, 2000(1) RCR (Criminal) 780, wherein, it was held that in case, the notice does not specify the amount in terms of the cheque, the same will not satisfy the legal requirement.
In case titled as Balaji Sea Foods Exports (India) Ltd. v. Mac Industries Ltd., 1999(1) RCR (Criminal) 683 (Madras), the complaint was dismissed on the ground that undated cheque was given at the time of execution of the agreement holding that there was no debt or liability when the cheque was handed over to the drawee and, therefore, the complaint could not be maintainable. Hence, the summoning order was quashed and the complaint was also dismissed.
Since, the requirement of Section 138 of the Act are not fulfilled and cheque, in dispute was used by the complainant which was given as a security and because of difference in amount, it cannot be even presumed that the cheque was given to discharge the legal obligation but it is clear from the evidence available on the file that cheque, in dispute, was used by the complainant which was given by the respondent as security.
There is no infirmity and illegality in the Order passed by the trial Court in acquitting the respondent and no interference is called for. Accordingly, the application for grant of leave to file appeal is dismissed. Crl. Misc. No.336-MA of 2010 5 However, the applicant is at liberty to avail the remedy available under the law as per agreement executed between the parties.
(DAYA CHAUDHARY) 05.09.2012 JUDGE gurpreet