Hemant Kumar vs Sh. Ved Parkash

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.21 of 2021 Date of Decision: 1.03.2023 .

_______________________________________________________ Hemant Kumar .......Petitioner Versus Sh. Ved Parkash ... Respondent _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 For the Petitioner:

Mr. Kishore Pundeer, Advocate.

For the Respondent: Ms. Chetna Thakur, Advocate.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure takes exception to judgment 16.03.2020 passed by learned Sessions Judge, Solan, District Shimla, H.P, in Criminal Appeal No.34-5/10 of 2019, affirming the judgment of conviction and order of sentence dated 29.06.2019 passed by learned Chief Judicial Magistrate, Solan, District Solan, H.P., in Cr. Complaint No.158/3 of 2015, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to 1 Whether the reporters of the local papers may be allowed to see the judgment?

undergo simple imprisonment for a period of six months and pay fine of `1,60,00,000/-.

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 in the month of November 2014, accused approached him for financial assistance with the assurance to return the same within a short period. Complainant alleged that he after having arranged sum of `1,00,000/-from chit fund and sum of Rs.50,000/-from his savings paid sum of Rs.1,50,000/- to the accused, who with a view to discharge his lawful liability issued cheque No.985467, dated 13.11.2014 for sum of Rs. 1,50,000/- against his account maintained at State Bank of India, Solan. However, fact remains that aforesaid cheque was dishonoured on account of insufficient funds in the 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, 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 ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 3 of having committed offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him as per the description given hereinabove.

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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, Solan, District Solan, Himachal Pradesh, which also came to be dismissed vide judgment dated 16.03.2020, 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.

5. Vide order dated 01.02.2021, this Court suspended the substantive sentence imposed by the Court below subject to petitioner-accused depositing the entire compensation amount However, fact remains that aforesaid order never came to be complied with. Court case file reveals that repeatedly matter came to be adjourned on the request of learned counsel for the petitioner, enabling petitioner to deposit the amount, but in vain.

Vide order dated 21.11.2022, this Court while directing the petitioner-accused to deposit the compensation amount awarded by Court below, also directed him to remain present in Court.

Neither he has come present nor has deposited the amount.

Today during the proceedings of the case, learned counsel for the petitioner stated that the since petitioner is not coming forward to .

impart instructions, matter may be heard finally 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 both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever in the present matter.

7. In the instant case, there is no specific denial, if any, on the part of the petitioner-accused with regard to issuance of cheque as well as signature thereupon, rather he attempted to setup a defence that cheque in question was issued as a security, but no evidence, worth credence, ever came to be led on record to prove aforesaid defence. Complainant with a view to prove its case examined himself as CW-1 and tendered in evidence his affidavit Ex.CW1/A, wherein he reiterated all the averments contained in the complaint. He successfully proved on record documents i.e. cheque No.985467 dated 13.11.2014 for sum of `1,50,000/- Ex.CW1/B, cheque returning memo dated 17.12.2014 ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 5 of ING Vysya Bank Limited Dharampur, District Solan, H.P., Ex.CW1/C, legal notice/demand noticed dated 22.12.2014 Ex.CW1/D, acknowledgment card Ex.CW1/E and passbook .

Ex.CW1/F. Accused in his statement recorded under Section 313 Cr.P.C, nowhere specifically denied factum with regard to his having issued cheque, rather he admitted issuance of cheque but not towards the discharge of lawful liability but as a security. He setup a case that he was working as Carpenter in the complainant's house and had taken some advance of Rs. 75,000/-

and in lieu thereof had issued security cheque, which was misused by him. Since, there is no denial with regard to issuance of cheque and signature thereupon on the part of the petitioner-accused, presumption with regard to issuance of cheque as provided under Section 139 of the Act comes into play. Section 139 of the Act clearly provides that there is presumption in favour of holder of the cheque that same was issued towards discharge of lawful liability. No doubt, aforesaid presumption can be rebutted by leading cogent and convincing evidence. To rebut the presumption as provided under Section 139 of the Act, accused either can lead positive evidence or can place reliance upon the documents or pleadings adduced on record by the complainant. In the instant case, though accused attempted to setup a case that cheque in question was issued as a security, but in support of such defence, he failed to lead evidence.

8. 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 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.

9. 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 that Section 139 is an example of a reverse onus clause ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 7 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 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 ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 8 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.

10. 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 took a loan from the complainant. Though, he admitted issuance of cheque Ex.CW1/B but claimed that same was issued as a security 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 ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 9 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.

11. Complainant Ved Parkash in his statement recorded by the court below categorically stated that he advanced sum of Rs. 1, 50,000/- to the accused on his request, who with a view to discharge his liability issued cheque Ex.CW1/B, amounting to `, 1,50,000/- but same was dishonoured. Cross-examination conducted upon this witness, if perused in its entirety, nowhere suggest that accused was able to extract something contrary to what this witness stated in his examination-in-chief. Factum with regard to dishonouring of cheque on account of 'insufficient' fund stands duly established on account of placement of returning memo dated 17.12.2014 issued by ING Vysya Bank Ltd.

Dharampur, District Solan, H.P., Ex.CW1/C. Similarly Ex.CW1/E the acknowledgment card regarding delivery of legal notice/statutory demand notice dated 22.12.2014( Ex.CW1/D) to the accused, clearly reveals factum with regard to receipt of notice. The acknowledgment card bears the signature of the accused meaning thereby that the legal notice/demand notice Ex. CW1/D was received by him, but yet he failed to respond and pay the cheque amount and as such, no illegality can be said to have been ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 10 committed by the complainant while instituting complaint under Section 138 of the Act.

12. 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 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 ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 11 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."

13. 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.

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 reason to interfere with the well reasoned judgments passed by the courts below.

15. Consequently, the present revision petition is dismissed being devoid of any merit and judgments passed by ::: Downloaded on - 02/03/2023 20:33:53 :::CIS 12 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 01,2023
         (shankar)




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