Post Office Banuri vs Ashwani Kumar
2021 Latest Caselaw 4167 HP

                                      1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 25th DAY OF AUGUST, 2021




                                                                 .
                                 BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                   CRIMINAL REVISION No. 244 of 2020





      Between:-
      SH. ASHWANI KUMAR,
      S/O SH. DHARAM CHAND,
      R/O VILLAGE AND





      POST OFFICE BANURI,
      TEHSIL PALAMPUR,
      DISTRICT KANGRA, H.P.
                         r                              ...PETITIONER
      (BY SHRI HAKAM BHARDWAJ, ADVOCATE)

      AND

     RAMESH GUPTA, SON OF SHRI


     RAM    CHANDER     GUPTA,
     RESIDENT     OF      AIMA
     PALAMPUR,          TEHSIL
     PALAMPUR,        DISTRICT




     KANGRA, H.P.
                                                   ...RESPONDENT





     (SHRI SURINDER SAKLANI, ADVOCATE)
     Whether approved for reporting? No.
__________________________________________________________





            This petition coming on for admission this day, the Court
passed the following:
                                 JUDGMENT

By way of this petition filed under Section 397 of the Code of

Criminal Procedure, a prayer has been made by the petitioner to set aside

the judgment of conviction, dated 06.09.2018, passed against him by the

Court of learned Additional Chief Judicial Magistrate, Palampur, District

Kangra, H.P. in Criminal Case No. 155-III/2015, titled as Ramesh Gupta

.

Vs. Ashwani Kumar, vide which, the petitioner was convicted for

commission of offence punishable under Section 138 of the Negotiable

Instruments Act and was sentenced to undergo simple imprisonment for a

period of six months and pay compensation to the tune of Rs.2,30,000/-

as well as against judgment dated 27.02.2020, passed by the Court of

learned Sessions Judge-III, Kangra at Dharamshala, District Kangra, H.P.

in Criminal Appeal No. 44-P/X/2018, titled as Ashwani Kumar Vs. Ramesh

Gupta, vide which, the appeal filed by the present petitioner against the

judgment passed by the learned Trial Court, stood dismissed.

2. Brief facts necessary for the adjudication of this petition are

that the proceedings stood initiated against the present petitioner by the

respondent herein under Section 138 of the Negotiable Instruments Act on

the ground that a cheque bearing No. 000009:176013202:000077, dated

11.04.2015 for the sum of Rs.2,00,000/-(Rupees Two Lacs) was issued by

the accused to the complainant in lieu of money, which stood advanced by

the complainant to the accused on account of their friendly relations,

which on being presented for collection before the Bank, was returned on

the ground of insufficient funds. Thereafter, a Legal Notice was duly

issued to the accused, which was not responded to, leading to the filing of

a complaint under Section 138 of the Negotiable Instruments Act. The

complaint stood allowed by the learned Trial Court by holding that it stood

proved on record that a Cheque for an amount of Rs. 2,00,000/- was

.

indeed issued by the accused in favour of the complainant, as was duly

substantiated by the complainant by leading evidence and same was not

refuted by the accused. The defence that he took that he had taken only

an amount of Rs.80,000/- from the complainant and the cheque was given

by way of security, which was misused, was not substantiated by leading

cogent evidence. The complaint was accordingly allowed and as already

mentioned above, the accused was sentenced to undergo simple

imprisonment for a period of six months and pay compensation to the tune

of Rs.2,30,000/-.

3. In appeal, the judgment so passed by the learned Trial Court

was upheld by the learned Appellate Court by observing that there was no

infirmity with the findings returned by the learned Trial Court, as the

findings were duly substantiated from the pleadings and evidence on

record. Learned Appellate Court after discussing the statements of the

witnesses as well as the documentary evidence on record, re-affirmed the

findings returned by the learned Trial Court that the accused was guilty of

commission of offence punishable under Section 138 of the Negotiable

Instruments Act.

4. I have heard learned counsel for the parties and have also

gone through the judgments passed by the learned Courts below.

5. Learned counsel for the petitioner has not been able to

demonstrate that the judgment of conviction passed by the learned Trial

.

Court, as upheld by the learned Appellate Court, is perverse and the

findings returned are not borne out from the record. The complainant has

substantiated his contentions by entering the witness box himself as also

by producing two other witnesses in the witness box. The cheque as well

as memo of return, as also the legal notice and postal receipts thereof

stand duly proved on record. The issuance of the cheque in fact has not

been denied by the petitioner-accused, who put forth a defence that it was

only an amount of Rs.80,000/-, which he had taken from the complainant

and the cheque was issued as a security, which stood misused by the

complainant. This bald assertion has not been substantiated by leading

any cogent evidence and as the issuance of cheque and signatures upon

the same of the accused have not been denied, therefore, the

presumption as per Section 139 of the Negotiable Instruments Act also

comes into play.

6. Accordingly, in view of discussions held hereinabove,

as this Court finds no infirmity with the judgments passed by learned

Courts below, this petition being devoid of any merit is dismissed.

(Ajay Mohan Goel) Judge August 25, 2021 (bhupender)