Himachal Pradesh High Court
Sh. Badri Prasad vs Sh. Padam Singh on 16 March, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.19 of 2021 Date of Decision: 16.03.2023 .
_______________________________________________________ Sh. Badri Prasad .......Petitioner Versus Sh. Padam Singh ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Jeevesh Sharma, Advocate.
For the Respondent: Ms. Rekha Bansal, Advocate vice Mr. Kulbhushan Khajuria, Advocate.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, lays challenge to judgment dated 30.12.2019 passed by learned Sessions Judge(Forests)Shimla, H.P., in Criminal Appeal No.14-R/10 of 2018, affirming the judgment of conviction dated 16.05.2018 and order of sentence dated 21.05.2018 passed by learned Additional Chief Judicial Magistrate, Court No.1 Rohru, District Shimla, H.P., in Criminal Case No.143-3 of 2015, titled as Padam Singh vs. Badri Prasad, whereby learned trial Court while holding 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 17/03/2023 20:33:06 :::CIS 2
petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple .
imprisonment for a period of six months and to pay compensation to the tune of Rs.8,00,000/- to the complainant.
2. Precisely, the facts of the case, as emerge from the record are that the respondent/complainant (for short 'complainant') filed a complaint under Section 138 of the Negotiable Instruments Act (for short 'Act') in the competent court of law, alleging therein that on 20.9.2014, accused purchased 600 apple boxes of 'AAA' grade at the rate of Rs.1000/- each for total consideration of Rs.6, 00,000/-.
Accused with a view to discharge his lawful liability, issued cheque No.054054, dated 10.6.2015, amounting to Rs.6,00,000/- in favour of the complainant drawn at State Bank of India Branch Rohru. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the bank account of the accused and as such, complainant was compelled to issue statutory notice to the accused calling upon him to make the payment good within the time stipulated in the notice. Since, ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 3 the accused despite having received notice failed to make the payment good, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent .
court of law.
3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him as per the description given hereinabove.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial court, present petitioner-accused preferred an appeal in the Court of learned Sessions Judge (Forests) Shimla, District Shimla, Himachal Pradesh, which also came to be dismissed vide judgment dated 30.12.2019, as a consequence of which, judgment of conviction and order of sentence recorded by learned trial Court came to be upheld. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgments and order passed by learned Courts below.
::: Downloaded on - 17/03/2023 20:33:06 :::CIS 45. Vide order dated 22.01.2021, this Court suspended the substantive sentence imposed by the Court below subject to petitioner-accused depositing the entire .
compensation amount However, fact remains that despite repeated opportunities, no amount was deposited. Court case file clearly reveals that matter repeatedly came to be adjourned on the request of learned counsel representing the petitioner, enabling the petitioner to deposit the amount awarded by court below but neither petitioner came present before this court nor has deposited the amount and as such, today during the proceedings of the case, learned counsel representing the petitioner fairly states that this Court may proceed to decide the case on its own merit.
6. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned in the impugned judgment, this Court is not persuaded to agree with the submissions of learned counsel for the petitioner-accused that Court below has not appreciated the evidence in its right perspective, rather this Court finds that complainant has successfully proved on record that cheque Ex.CW2/B, amounting to Rs. 6,00,000/-
was issued by accused towards discharge of his lawful ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 5 liability, but same was dishonoured on account of insufficient funds in the bank account of the accused.
7. In the case at hand, there is no specific denial, if .
any, with regard to issuance of cheque as well as signature thereupon. Accused in his statement recorded under Section 313 Cr.P.C, while denying the case of the complainant, specifically admitted factum with regard to his having issued cheque as well as signature thereupon, but claimed that cheque in question was issued as security. Once factum with regard to issuance of cheque as well as signature thereupon is admitted, presumption as available under Section 139 of the Act comes into play that cheque in question was issued towards discharge of lawful liability. No doubt aforesaid presumption is rebuttal but for that purpose, person seeking to rebut such presumption is under obligation to lead some positive evidence or he/she may rebut such presumption by referring to the material available on record by the complainant either by way of complaint or oral evidence.
However, in the case at hand, evidence, if any, led on record by accused is perused in its entirety, it can be safely concluded that he was unable to rebut the presumption that ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 6 cheque in question was issued towards discharge of lawful liability.
8. Complainant while examining himself as CW-1 .
deposed on oath through his affidavit Ex.CW1/A that accused had purchased 600 apple boxes from him on 20.4.2014 at the rate of Rs. 1000/- each. He deposed that though accused had assured at the time of purchase that he would pay sale consideration after selling the same in the market, but since he failed to pay the same, he issued cheque No.054054, amounting to Rs. 6,00,000/- dated 10.06.2015 drawn at State Bank of India Branch Rohru, however same was dishonoured on account of insufficient funds in the account of the accused. He deposed that he got accused served with statutory legal notice on 20.6.2015 on his correct address through registered AD, thereby demanding the payment of cheque within 15 days but accused refused to receive the notice and failed to pay the cheque amount. If cross-
examination conducted upon this witness is perused in its entirety, there is nothing to suggest that accused was able to extract something contrary what this witness stated in his examination-in-chief. He specifically denied the suggestion put to him that cheque was given by accused for ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 7 consideration against transaction of herbs made in the year 2012. He also denied that cheque was given as security.
9. Accused in his statement recorded under Section .
313 Cr.P.C stated that he gave blank cheque in favour of Padam Singh as security cheque for transaction of herbs.
While examining himself as DW-1, he deposed that complainant Padam Singh had purchased forest roots (Satwa) from him. He deposed that complainant had given him Rs.1,00,000/- and he had given blank security cheque, which was subsequently not returned despite his demand.
He deposed that when he demanded cheque from Padam Singh, he told him that same has been lost and as and when same is located, he would return the same. In his cross-
examination, he admitted that on 15.06.2015 he was having insufficient funds in his account. He also stated in his cross-
examination that he gave the cheque as security to Padam Singh in the year 2014.
10. DW-2, Sh. Bhag Chand deposed that Padam Singh had purchased 'Satwa' from Badri Prasad, but in the year 2012-13. In cross-examination, he stated that Padam Singh had purchased the roots/herbs in the year 2012-2013. No doubt, by way examining DW-2, Bhag Chand and putting a ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 8 defence that cheque in question was issued as security cheque, attempt came to be made on behalf of the accused to set up a case that cheque in question was not issued .
towards discharge of lawful liability, but evidence, as have been discussed hereinabove, nowhere compels this Court to draw a conclusion that accused successfully rebutted the presumption that cheque in question was issued towards discharge of lawful liability. DW-2, Bhag Chand categorically stated that complainant had purchased roots herbs in the year 2012-13, if it is so, there was no occasion, if any, for the accused to give security cheque in the year, 2014. If transaction was of the year 2013, there was otherwise no occasion for the accused to give security cheque in the year 2014. Since accused admitted factum with regard to his having issued cheque as security as well as signature thereupon, learned courts below rightly applied provision under Section 139 of the Act, which provides that there shall be presumption in favour of the holder of the cheque that same was issued towards lawful liability.
11. Needless to say, security cheques are the cheques only like any other cheques and they create same liability to discharge as if they are ordinary cheques and ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 9 attract the provisions of Section 138 of the Act when they are dishonoured. To attract the provision of Section 138 of the Act, complainant is only required to prove that cheque was .
issued in discharge of legally enforceable debt, but merely calling a cheque a security will not help the accused. He is required to show the probable circumstances that the cheque was not issued in discharge of legally enforceable debt or other liability.
12. 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:-
::: Downloaded on - 17/03/2023 20:33:06 :::CIS 10"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 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 ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 11 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.
13. 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 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. In the case at hand, accused neither denied nor disputed that he had purchased apple boxes from the complainant. Though, he admitted issuance of cheque Ex.CW1/B but claimed that same was issued as a security ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 12 cheque. The movement he admitted the factum with regard to issuance of cheque and signature thereupon, statutory presumption as available under Section 139 of the Act comes .
to operation, which talks about the presumption in favour of holder of the cheque that cheque in question was issued towards discharge of lawful liability. No doubt, accused could rebut aforesaid presumption but there is no material available on record suggestive of the fact that he was able to rebut aforesaid presumption.
14. Having carefully scanned the entire evidence available on record, this Court is convinced and satisfied that complainant successfully proved on record by leading cogent and convincing evidence that cheque in question Ex.CW1/B was issued by accused towards discharge of his lawful liability and he has further successfully proved that cheque issued by the accused on its presentation to the bank concerned was returned on account of insufficient funds.
Hence, it cannot be concluded that courts below have committed any illegality and infirmity while holding accused guilty of having committed offence punishable under Section 138 of the Act. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 13 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."
15. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as of 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.
16. 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 ::: Downloaded on - 17/03/2023 20:33:06 :::CIS 14 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 reason to interfere with the well reasoned judgments passed by the courts below.
17. Consequently, the present revision petition is dismissed being devoid of any merit and judgments passed by learned courts below are upheld. The petitioner is directed to surrender himself 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.
(Sandeep Sharma), Judge March 16,2023 (shankar) ::: Downloaded on - 17/03/2023 20:33:06 :::CIS