Himachal Pradesh High Court
Gulab Singh Shandil vs Vidya Sagar Sharma on 10 March, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 394 of 2015
Date of Decision 10th March 2017
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Gulab Singh Shandil ....Petitioner
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Versus
Vidya Sagar Sharma ....Respondent
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Coram
The Hon'ble Mr. Justice Sandeep Sharma, J.
Whether approved for reporting?1 Yes.
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For the Petitioner: Shri Vikas Chandel, vice Advocate.
For the Respondent: Shri Hamender Chandel, Advocate.
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Sandeep Sharma, J.(oral)
Instant criminal revision petition filed under Sections 397 and 401 Cr.P.C. is directed against judgment dated 7.9.2015, passed by learned Sessions Judge, Solan in criminal appeal No. 1- S/10 of 2015, affirming judgment of conviction dated 27.11.2014 recorded by learned Judicial Magistrate 1st Class, Solan, District Solan in criminal complaint No. 193/3 of 2014/10, whereby 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 2 learned Court below, while holding accused/petitioner guilty of having committed an offence punishable under Section 138 of .
the Negotiable Instruments Act, (hereinafter referred to as the Act) convicted and sentenced him to undergo simple imprisonment for three months and to pay fine amount of Rs.
five lacs as compensation to the complainant.
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2. Briefly stated the facts, as emerged from record, are that respondent (hereinafter referred to as the complainant) filed a complaint under Section 138 of the Act in court of learned rt Judicial Magistrate 1st Class, Solan, District Solan H.P. alleging therein that since accused/petitioner had friendly relations with complainant, therefore, he, on his request, advanced Rs. four lacs to petitioner on account of his personal requirement.
Complainant further alleged that accused promised the complainant that amount would be repaid in the month of January, 2010 and accordingly, with a view to discharge his liability, accused/petitioner issued two cheques bearing Nos.
964173 dated 6.1.2010 and 964172 dated 7.1.2010 amounting to Rs.2 lacs each drawn on UCO Bank, Solan Branch. However, the fact remains that on presentation of the aforesaid cheques, having been issued by accused, the same were dishonoured by Bank of Baroda vide memo dated 7.1.2010 on account of ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 3 insufficient funds. Complainant, on receipt of aforesaid memo, got a legal notice issued to accused/petitioner calling upon him .
to make payment good qua cheques but since no payment was made by accused, complainant was compelled to initiate proceedings under Section 138 of the Act against the accused.
3. Learned trial Court, on the basis of material adduced of on record by respective parties, held the accused/petitioner guilty of having committed an offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as rt per description given hereinabove.
4. Accused/petitioner being aggrieved and dissatisfied with judgment of conviction recorded by learned Court below, preferred an appeal in the Court of learned Sessions Judge, Solan which came to be registered as Cr. Appeal No. 1-S/10 of 2015.
Learned Sessions Judge, Solan vide judgment dated 7.9.2015 dismissed the appeal, as a result of which conviction recorded by learned Court below came to be upheld.
5. In the aforesaid background, accused/petitioner approached this Court in instant proceedings seeking his acquittal after setting aside the judgment of conviction recorded by learned Courts below.
::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 46. This Court vide order dated 4.11.2015 suspended the substantive sentence subject to the petitioner's furnishing a .
personal bond to the tune of Rs.50,000/- (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of learned trial Court. Vide aforesaid order, accused/petitioner was also directed to deposit fine amount to the tune of Rs.5 lacs but of same was not deposited by accused/petitioner with learned trial Court. However, the fact remains that despite order having been passed qua suspension of sentence, accused/petitioner neither furnished rt bail bonds nor deposited the amount of fine.
Subsequently, on 18.10.2016 learned counsel representing the petitioner stated before the Court that there is possiblity of amicable settlement between the parties and accordingly, matter was adjourned for 8.11.2016 with direction to parties to remain present in Court. However, the accused/petitioner failed to appear before the Court but this Court, on vehement request having been made by learned counsel representing the petitioner, adjourned the matter for 8.11.2016 directing the petitioner to come present but he failed to appear before the court. Therefore, matter was again listed on 29.11.2016, on which date neither accused/petitioner put in appearance nor complied with order dated 4.11.2015 whereby his substantive ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 5 sentence imposed by learned trial Court was suspended.
Accordingly, in view of aforesaid conduct of accused/petitioner, .
this Court listed the instant matter for admission on 10.3.2017.
7. Mr.Vikas Chandel, learned counsel representing the petitioner, vehemently argued that impugned judgments passed by learned Courts below are not sustainable and same are not of based upon correct appreciation of evidence adduced on record by respective parties and as such, same deserve to be quashed and set aside. Mr. Chandel further argued that bare perusal of rt evidence led by parties clearly suggests that both Courts below have miserably failed to appreciate the evidence in its right perspective. Mr. Chandel, learned counsel representing the petitioner, further contended that there is no evidence led on record by complainant that amount, if any, was advanced to accused on account of some lawful consideration. He also stated that cheques, as alleged by complainant, were issued on account of security as agreement was entered upon between the parties for sale of land. In the aforesaid background, learned counsel representing the petitioner prayed that petitioner may be acquitted from charges framed against him under Section 138 of the Act, after setting aside the judgments recorded by learned Courts below.
::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 68. Mr. Hamender Chandel, learned counsel representing the respondent/complainant, supported the impugned judgments .
passed by both Courts below. While inviting the attention of this Court to judgments of conviction recorded by learned Courts below, Mr. Hamender Chandel, learned counsel, strenously argued that same are based upon proper appreciation of of evidence and there is no scope of interference in the aforesaid judgments, especially in view of the concurrent findings of facts as well as law given by both Courts below. To refute the rt arguments addressed by learned counsel representing the petitioner, Mr. Hamender Chandel, learned counsel, invited the attention of this Court to Ext.D1 i.e. agreement to sell, allegdly executed between the parties, to demonstrate that steps, if any, for execution of sale deed, were to be taken by accused/petitioner not by complainant, who admittedly advanced Rs. four lacs to accused/petitioner after obtaining the loan from the Bank. Mr. Hamender Chandel, learned counsel, also invited the attention of this Court to statement having been made by accused, wherein he has stated that he had issued two cheques worth Rs. two lacs each. Mr. Chandel further stated that petitioner/accused has admitted that he had accepted the amount as per Ext.D1. While concluding his argument, Mr. ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 7 Hamender Chandel, learned counsel, forcefully contended that all the material points have been dealt with meticulously by .
learned Courts below and as such, present proceedings be dismissed and quashed. He also placed reliance on "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999)2 Supreme Court Cases 452, to state that this Court has very limited scope to of re-appreciate the evidence especially while exercising the revisionery powers under Section 397 Cr.P.C.
9. rt I have heard learned counsel for the parties and gone through the record.
10. During proceedings of the case, this Court had an occasion to peruse pleadings as well as evidence adduced on record by respective parties, perusal whereof clearly suggest that learned Courts below while holding petitioner guilty of having committed an offence under Section 138 of the Act have dealt with each and every subject of the matter meticulously and there is no misappreciation of evidence as alleged by learned counsel for the petitioner. Rather, this Court is convinced and satisfied that complainant by leading cogent and convincing evidence on record successfully proved on record that accused/petitioner had issued two cheques bearing Nos. 964173 and 964172, Ext.CW2/A and Ext.CW2/B amounting to Rs.2 lacs ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 8 each in lieu of the amount taken by him from complainant.
Complainant, while appearing before the learned trial Court as .
CW2, has categorically stated that he had advanced an amount of Rs. four lacs to accused on his request and accused agreed to return the same within three months in the month of September and in order to discharge such liability, accused issued two of cheques Ext.CW2/A and Ext.CW2/B in favour of complainant. He further stated that he presented aforesaid cheques for collection with bank on 7.1.2010 but the same were returned unpaid vide rt memos Ext.CW2/D and Ext.CW2/E for want of sufficient funds in account of accused. He also successfully proved on record that after dishonouring of the cheques, he had got issued legal notice Ext.CW2/F dated 3.2.2010 calling upon accused to make payment, through registered cover vide postal receipt Ext.CW2/G as well as under receipt of postal certificate Ext.CW2/H. Cross examination conducted on this witness/complainant, nowhere suggests that accused was able to extract anything contrary to what, complainant stated in his examination in chief. CW2 Kamal Kishore official of Bank of Baroda, Solan proved the abstract of cheque returning register Ext.CW1/A and stated before the Court that two cheques were deposited in the bank by complainant for amounting to Rs.two lacs each but same were ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 9 returned unpaid for want of sufficient funds in the account of accused. Record suggests that there is no cross examination of .
this witness by accused/petitioner and as such his statement remained unrebutted. Conjoint reading of statements of aforesaid witnesses clearly proves on record that complainant successfully proved all the ingredients of Section 138 of the Act.
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11. Accused/petitioner while making statement under Section 313 Cr.P.C. admitted the issuance of cheques but stated that these were issued as a security for performance of rt agreement Ext.D1. This Court carefully perused Ext.D1. Perusal whereof corroborates the version putforth by complainant that he had advanced an amount of Rs. four lacs to accused/petitioner on his asking. It would be profitable to reproduce following paras of agreement Ext.D1:-
"2. That the first party is in dire of money due to her family circumstances and she contacted second party to obtain loan from any nationalized bank/any financial institution amounting to Rs.4,00,000/- (rupees four lacs only) for a period of 3(three) months from the date of this agreement.
3. That the second party is ready and willing with the first party and he will provide Rs.4,00,000/- (rupees four lacs only) as loan from any bank on today and second party stood guarantor/surety in the said bank. For obtaining loan second party will pedge his FDR or any other relevant documents to the bank concerned.::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 10
4. That the first party today received Rs.4,00,000/-
(rupees four lacs only) from second party/bank and the receipt of which is hereby acknowledged by the first party.
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5. That the first party hereby undertakes that she will return Rs.4,00,000/- to second party within three months from the date of agreement or to the bank concerned, failing which the first party shall execute sale deed of above mentioned land in favour of second party immediately."
of It clearly emerge from aforesaid affidavit that an amount of Rs.
four lacs was advanced to accused/petitioner by complainant rt after obtaining loan from some bank. Similarly para 4 of affidavit suggests that petitioner/accused received Rs. four lacs from complainant and acknowledged the same by issuing the receipt.
Most importantly, para 5 of agreement suggests that accused/petitioner agreed to return an amount of Rs. four lacs to complainant within three months from the date of agreement or to the bank concerned, failing which, reserved right to complainant to get the sale deed executed in his favour. This Court was unable to find out any record adduced by accused/petitioner suggestive of the fact that sale deed, if any, was executed between the parties persuant to agreement Ext.D1. Hence defence as taken by accused/petitioner under Section 313 Cr.P.C. was rightly not taken into consideration by ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 11 learned Courts below while holding petitioner guilty of having committed an offence punishable under Section 138 of the Act.
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12. Accused, while appearing as DW1, reiterated that he had handed over cheques in question to complainant as security for performance of agreement Ext.D1. He also admitted execution of agreement Ext.D1 i.e. of 26.2.2009 and he also of admitted that under agreement he had obtained a sum of Rs.
four lacs from complainant. However, he further stated that cheques in question were issued in favour of complainant so that rt complainant may not decline to perform his part of agreement and thus he has no liability to pay cheques amount to complainant.
13. DW2 Sunil Sharma, Notary Public, Solan has stated that agreement Ext.D1 was attested by him. His statement may not be relevant in view of admission of both the parties regarding execution of this agreement Ext.D1. Conjoint reading of evidence and documents placed on record clearly establish on record that complainant had advanced an amount of Rs. four lacs to accused on understanding that he would return the same within stipulated period. Similarly this Court after carefully examining the cheques Ext.CW2/A and Ext.CW2/B is convinced that these were issued by accused/petitioner towards his liability to repay ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 12 the amount. Careful perusal of Ext.D1, leaves no doubt in the mind of Court, that amount as referred above was paid by .
complainant to accused and he in discharge of his liability issued cheques, which were ultimately dishonoured. This Court with a view to ascertain the genuineness and correctness of argument having been advanced by learned counsel for the of accused/petitioner that there was no lawful consideration, carefully examined the entire evidence, which clearly suggests that there is no merit in aforesaid argument of learned counsel rt representing the petitioner. Bare perusal of Ext.D1, which was tendered in evidence by petitioner himself, proves on record that he had taken amount from the complainant and had issued two cheques for discharing his liability.
14. Consequently, this Court, after carefully examining the material on record, sees no illegality and infirmity in judgments of conviction recorded by learned Courts below, which are certainly based upon correct appreciation of evidence adduced by parties and as such, present petition is dismissed.
Petitioner is directed to surrender himself before learned trial Court to serve out the sentence forthwith. Needless to say that order dated 4.11.2015, whereby substantive sentence was suspended, shall be vacated automatically. Record of learned ::: Downloaded on - 15/04/2017 22:00:31 :::HCHP 13 Courts below be sent back along with a copy of this judgment.
Petition stands disposed of including all pending miscellaneous .
application(s), if any.
March 10, 2017. (Sandeep Sharma),
ms Judge
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