Ram; vs Sh. Prem Lal
2021 Latest Caselaw 4220 HP

                                      1



      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 27th DAY OF AUGUST, 2021




                                                             .
                                  BEFORE





                HON'BLE MR. JUSTICE AJAY MOHAN GOEL

                     CRIMINAL REVISON No. 14 of 2021





    Between:-

    SH. PREM LAL SON OF SHRI KAMNA





    RAM; R/O VILLAGE KIAR, POST
    OFFICE    KIAR,   TEHSIL THEOG,
    DISTRICT SHIMLA, HP.
                      r                             ..........PETITIONER

    (BY SH. ASHOK KUMAR, ADVOCATE)

    AND

    SH. JEET SINGH SON OF SHRILNDER


    SINGH; R/O VILLAGE MATLLI, POST
    OFFICE    KIAR,   TEHSIL THEOG,
    DISTRICT SHIMLA, HP.
                                                    ........RESPONDENT




    (BY MR. LAKSHAY THAKUR, ADVOCATE)





    ___________________________________________________________

                Whether approved for reporting:     No





                This petition coming on for orders this day, the Court

    passed the following:-

                                 ORDER

By way of this revision petition filed under Section

397 of the Code of Criminal Procedure, a prayer has been made

by the petitioner to set aside the judgment passed by the Court

of learned Additional Chief Judicial Magistrate, Theog, District

Shimla, in criminal case No. 181/3 of 2015, titled as Sh. Jeet

Singh vs. Sh. Prem Lal, dated 16.05.2017, vide which, in a

.

complaint filed against the present petitioner under Section 138

of the Negotiable Instruments Act by the present respondent, the

petitioner stood convicted and was sentenced to undergo simple

imprisonment for a period of two months and also to pay

compensation to the tune of `3,50,000/- to the complainant as

well as the judgment passed by the Court of learned Additional

Sessions Judge-cum-Special Judge (CBI), District Shimla, H.P.

in Criminal Appeal No. 123/2018, titled as Sh. Prem Lal vs. Sh.

Jeet Singh, dated 02.08.20219, vide which the judgment passed

by learned Trial Court was upheld by the learned Appellate

Court.

2. Brief facts necessary for the adjudication of the

present petition are that a complaint stood filed by the present

respondent (hereinafter to be referred as the 'complainant' for

convenience) against the petitioner (hereinafter to be referred as

the 'accused' for convenience) under Section 138 of the

Negotiable Instruments Act inter alia on the ground that the

accused had approached the complainant in the month of

August, 2014, seeking financial help to the tune of `3,10,000/-

without interest, with the assurance that the complainant shall

be returned back the amount by the accused in the month of

December, 2014 or January, 2015. The amount was paid by the

complainant to the accused and in lieu thereof, the accused

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issued a cheque dated 11.03.2015, amounting to `3,10,000/- in

favour of the complainant. When said cheque was presented for

encashment, the same was dishonoured by the Bank.

Thereafter, a statutory notice was issued to the accused. Despite

issuance of the notice, accused failed to make good the payment

of the cheque, leading to filing of the complaint under Section

138 of the Negotiable Instruments Act.

3. Learned Trial Court allowed the complaint by

convicting the accused and sentencing him to undergo simple

imprisonment for a period of two months and by awarding

compensation to the tune of `3,50,000/- to be paid by the

convict to the complainant by holding that whereas the

complainant had duly substantiated his case that in lieu of the

amount due to him from the accused, the cheque stood issued

by the accused, which when presented for encashment, was

dishonoured by the bank, and on the other hand, the accused

had failed to bring sufficient, cogent and reliable evidence on

record to prove his defence that he had not issued the cheque in

favour of the complainant. Learned Court held that the stand

taken by the accused that he had not issued the cheque in

favour of the complainant but the same was issued in favour of

one 'Aadhati' was not proved by him by way of any substantive

evidence. On these findings, learned Trial Court allowed the

.

complaint filed by the complainant and convicted the accused.

4. In appeal, the findings returned by the learned Trial

Court were upheld by the learned Appellate Court and the

appeal was accordingly dismissed.

5. Feeling aggrieved, the accused/petitioner has filed

this revision petition.

6. I have heard learned Counsel for the parties and also

gone through the judgments passed by the learned Courts

below.

7. A perusal of the judgments passed by learned Courts

below demonstrates that the cheque in issue stood exhibited by

the complainant as Ext. CW1/B and so was the returning memo

and dishonor memo, which were duly exhibited as CW1/C and

CW1/D respectively. Legal Notice is exhibited on record as

CW1/E and postal receipts thereof are as Ext. CW1/F.

8. In order to prove his case, the complainant himself

entered into the witness box as CW1 and he also examined CW2

Shri Padam Dev Verma, an official from the bank concerned, to

prove his case. On the other hand, the accused did not lead any

evidence to substantiate his case. Record further demonstrates

that there is not even an iota of evidence on record placed by the

accused to substantiate his contention that the cheque in issue

was not issued by him in favour of the complainant but some

.

'Aadhhati'. Incidentally, as the issuance of the cheque has not

been disputed by the accused, therefore, the presumption

attached under Section 139 of the Negotiable Instruments Act

also comes into play. Otherwise also, learned Counsel for the

petitioner has not been able to demonstrate as to what was the

perversity with the findings returned by leaned Courts below as

these findings are duly substantiated from the pleadings and

evidence as was led by the complainant.

Accordingly, as this Court does not find any merit in

the present petition, the same is dismissed. Pending

miscellaneous application(s), if any, also stand disposed of.

(Ajay Mohan Goel) Judge August 27, 2021

(narender