Ram Lal vs Shri Mauji Ram
2021 Latest Caselaw 4231 HP

        IN       THE    HIGH    COURT OF      HIMACHAL            PRADESH,
                                     SHIMLA
                       ON THE 31st DAY OF AUGUST, 2021




                                                                 .
                                     BEFORE





                 HON'BLE MR. JUSTICE AJAY MOHAN GOEL





                   CRIMINAL APPEAL No.263 of 2020

    BETWEEN:


    RAM LAL, AGED 49 YEARS,





    SON OF SHRI PREM SINGH,
    RESIDENT    OF   VILLAGTE
    SHALINI, POST OFFICE SERI
    BUNGLOW, TEHSIL KARSOG,

    DISTRICT MANDI, H.P.
                                                               ....PETITIONER.

    (BY SHRI L.S.MEHTA, ADVOCATE)

    And



     MAUJI RAM SON OF SHRI
     SURAT RAM, RESIDENT OF




     VILLAGE BHURTHI, POST
     OFFICE   SERI BUNGLOW,





     TEHSIL KARSOG, DISTRICT
     MANDI, H.P.





                                                             ....RESPONDENT.

    (BY MR. RAJESH KUMAR VERMA, ADVOCATE )

    Whether approved for reporting?1 Yes

             This Petition coming on for admission this day, the Court passed the

    following:




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                                     2


                              JUDGMENT

By way of this appeal, filed under Section 378 of the

.

Code of Criminal Procedure, the appellant has assailed the judgment

passed by the Court of learned Judicial Magistrate, 1st Class,

Karsog, District Mandi, H.P., in Criminal Complaint No.555 of 2017,

titled as Shri Ram Lal Versus Shri Mauji Ram, decided on

02.03.2020, filed under Section 138 of the Negotiable Instruments

Act, vide which the complaint so filed by the present appellant stood

dismissed by the leaned Court below.

2. Brief facts necessary for the adjudication of the present

appeal are that the appellant herein filed a complaint under Section

138 of the Negotiable Instruments Act against the accused, on the

ground that the accused was known to him and had borrowed an

amount of Rs.85,000/- from him in the month of October, 2016, in

order to run his business of apples and other activities. In lieu

thereof, he issued a cheque to him for an amount of Rs. 85,000/-

,drawn upon State Bank of India, Karsog Branch, dated 21.03.2017.

The cheque when presented before the bank, was dishonoured, vide

memorandum dated 21.04.2017, on the ground of 'Insufficient

Funds'. Thereafter, the complainant got issued a legal notice

through counsel, dated 09.05.2017, to the accused, calling upon

him to make good the amount of the cheque. As the same was not

done, the complainant approached the Court and preferred the

complaint under Section 138 of the Negotiable Instruments Act.

.

3. The complaint was resisted by the accused, who took

the stand that he had given a blank cheque bearing his signatures,

to the complainant as surety for one Shri Narayan Dass and the

surety also was only for an amount of Rs.40,000/-. He further took

the defence that though the cheque was bearing his signatures, yet

neither the date nor the amount was in his handwriting. By way of

the impugned judgment, the complaint stands dismissed and the

accused stands acquitted.

4. Feeling aggrieved, the appellant has filed this appeal.

5. Learned counsel for the appellant has argued that the

judgment passed by the learned Court below is not sustainable in

the eyes of law as the learned Court erred in not appreciating that as

it stood proved that the cheque in issue was bearing the signatures

of the accused, nothing more remained to be proved by the

complainant and this extremely important aspect of the matter has

been ignored by the learned Court below while acquitting the

accused. He has further submitted that the complainant had proved

by leading cogent and satisfactory evidence to demonstrate that it

was in lieu of an amount which the accused owed to him that the

cheque in issue stood issued and this aspect of the matter has also

been ignored by the learned Court below. On this count, he

submitted that the appeal be allowed.

.

6. Supporting the judgment passed by the learned Court

below, learned counsel for the respondent has submitted that there

was neither any infirmity nor any perversity with the judgment

passed by the learned Court below as the learned Court after correct

appreciation of the pleadings of the parties as well as the evidence

on record dismissed the complaint and acquitted the accused. He

has argued that the complainant failed to demonstrate that the

cheque indeed was issued in lieu of an amount which the accused

owed to the complainant and in fact filing of the complaint was

nothing but an abuse of the process of law. He further states that

otherwise also it is settled law that the judgment of acquittal should

not be interfere with in appeal until and unless the same suffers

from ex facie perversity. According to him, as the findings returned

by the learned Court below are duly borne out from the record of the

case, therefore, the appeal deserves to be dismissed.

7. Having heard learned counsel for the parties and having

gone through the judgment passed by the learned Trial Court as well

as the record, this Court finds no perversity with the judgment of

acquittal passed by the learned Court below in favour of the present

respondent.

8. In order to prove his case, the petitioner entered the

witness box himself and also examined an officer of the bank to

.

prove that the cheque in issue was presented before the bank and

dishonoured. On the other hand, to discredit the complainant, the

accused examined Shri Narayan Dass as DW-1 and Shri Sewa Nand

as DW-2 to prove that the cheque indeed was issued as surety for

Narayan Dass.

9. Now, when one goes through the findings returned by

the learned Trial Court, one finds that what weighed with the

learned Trial Court while dismissing the complaint was that the

stand taken in the complaint by the complainant was not in sync

with what he deposed before the Court. Learned Court below held

that in his cross-examination the complainant submitted that it was

in lieu of a compromise that the cheque was issued as a negotiable

instrument for an amount of Rs.85,000/- and this discredited the

case put forth in the complaint by the complainant that the accused

had borrowed an amount of Rs.85,000/- from him.

10. To find out, as to whether these findings were borne out

from the record or were perverse findings, this Court has gone

through the cross-examination of the complainant and other record

too. It is mentioned in the complaint filed by the complainant under

Section 138 of the Negotiable Instruments Act that the accused was

known to him and he had borrowed an amount of Rs.85,000/- from

the complainant in the month of October, 2016 'in order to run his

business of apples and other activities'. Now, when one peruses the

.

cross-examination of the complainant, one finds that he stated

therein that he had lent an amount of Rs.5,00,000/- to three

persons including the accused and in lieu of said debt, he had

obtained affidavits of said three persons and thereafter, a

compromise was entered into between him and the others and in

lieu of this, a cheque of Rs.85,000/- was issued to him. Now, this

statement which r the complainant has made in his cross-

examination, as to why the cheque in issue was given to him by the

accused is completely different from the case put forth by him in the

complaint. This demonstrates that the complaint has not

approached the Court with clean hands.

11. This Court is alive to the fact that as the signatures

upon the cheque have been admitted by the accused, therefore, the

presumption attached to Section 139 of the Negotiable Instruments

Act does comes into play, but yet, this presumption is rebuttable. In

this case, the accused has duly rebutted said presumption by

proving his case that it was not in lieu of some amount borrowed by

him from the complainant that the cheque was issued by him to the

complainant. On the other hand, the complainant has discredited

his own case in his cross-examination which creates a doubt over

the story of the complainant and the genuineness of his claim.

12. In this view of the matter, as this Court does not finds

any infirmity or perversity with the findings returned by the learned

.

Court below, vide which the accused has been acquitted and the

complaint has been dismissed, this appeal being devoid of any merit,

is dismissed. Pending miscellaneous applications, if any, stand

disposed of.

    August 31, 2021                                  (Ajay Mohan Goel)
          (rishi)                                           Judge